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LECTURES 


ON   THE 


EAKLY  HISTORY  OF  INSTITUTIONS 

(A  SEQUEL  TO  "ANCIENT  LAW.**) 


BY  SIR   HENEY  SUMNER  MAINE 

K.C.SJ.  LLJ).  F.RS. 

1    'AXOZR   LAW'    iBD   '  TUtAOK-COMKTTKITnHi   W   TU  KATI  A 


NEW    YORK 
HENKY    HOLT   AND    COMPANY 

1888 


1MM 
M'1-r.Nr,  «io  aooKKNomo  coumw, 

NEW  rORK. 


Stack 


WHITLET  STOKES,  ESQ. 

[TO   THB    GOVERNMENT    OF   INDIA    IK    THE    LEGISLATIVE    DKPAJ 

THIS    VOLUME    18    DEDICATED 

Of   RBOOLLBCCTON    OF   A    LONG   OFFICIAL  OOMNBOTIOM 
AMI)   BT1LL   LONGBB    FttlKNDHHIP 


CONTENTS. 


L    NEW  MATERIALS  FOB  THK   EARLT    HISTOBT   OP    I*- 

STIT0TIONS              .......  1 

IL    THE  ANCIENT  IRISH  LAW      .        .        .        ...  24 

UL    KINSHIP  AS  THE  BASIS  OF  SOCIITT    ....  64 

IV.    THE  THIBE  AND  THE  LAND  .        .        v        .        .    .  98 

V.     THE  CHIEF  AND  HIS  ORDER 119 

VI.    THE  CHIEF  AND  THE  LAND 147 

VII.     ANCIENT  DIVISIONS  OF  THE  FAMILY  ....  185 

VIII.    THE  GROWTH  AND  DIFFUSION  OF  PRIMITIVE  IDEAS    .  225 

IX.     THE  PRIMITIVE  FORMS  OF  LEGAL  REMEDIES — I.         .  250 

X.     THE  PRIMITIVE  FORMS  OF  LEGAL  REMEDIES — II.       .  279 

XI.    THE  EARLT  HISTORY  OF  THE  SETTLED  PROPERTY  OF 

MARRIED  WOMEN 306 

XII.     SOVEREIGNTY 842 

XIII.    SOVEREIGNTY  AND  EMPIRE 371 

INDEX                                                               .    •  401 


PBEFACE. 


IN  the  Lectures  printed  in  this  Volume  an  attempt 
is  made  to  carry  farther  in  some  particulars  the  line  of 
inv  istigation  pursued  by  the  Author  in  an  earlier  work 
on  4  Ancient  Law.'  The  fortunes  of  the  legal  system 
which  then  supplied  him  with  the  greatest  number  of 
his  illustrations  have  been  strikingly  unlike  those  of 
another  body  of  law  from  which  he  has  now  endea- 
voured to  obtain  some  new  materials  for  legal  and 
social  history.  The  Eoman  Law  has  never  ceased  to 
be  spoken  of  with  deep  respect,  and  it  is  in  fact  the 
source  of  the  greatest  part  of  the  rules  by  which 
civil  life  is  still  governed  in  the  Western  World.  The 
Ancient  Irish  Law,  the  so-called  Brehon  Law,  has 
been  for  the  most  part  bitterly  condemned  by  the  few 
writers  who  have  noticed  it ;  and,  after  gradually  losing 
whatever  influence  it  once  possessed  in  the  country  in 

a 


Vlll  PREFACE. 

which  it  grew  up,  in  the  end  it  was  forcibly  sup- 
pressed. Yet  the  very  causes  which  have  denied  a 
modern  history  to  the  Brehon  Law  have  given  it  a 
special  interest  of  its  own  in  our  day  through  the 
arrest  of  its  development ;  and  this  interest,  the  Author 
hopes,  is  sufficient  to  serve  as  his  excuse  for  making 
the  conclusions  it  suggests  the  principal  subject  of  the 
Lectures  now  published,  except  the  last  three. 

The  obligations  of  the  Author  to  various  Gentle- 
men for  instruction  derived  from  their  published 
writings  or  private  communications  are  acknowledged 
in  the  body  of  the  work,  but  he  has  to  express  his 
especial  thanks  to  the  Bishop  of  Limerick,  and  to 
Professor  Thaddeus  O'Mahony,  for  facilities  of  access 
to  the  still  unpublished  translations  of  Brehon  manu- 
scripts, as  well  as  for  many  valuable  suggestions. 

The  Lectures  (with  the  omission  of  portions)  have 
all  been  delivered  at  Oxford. 


27  CORNWALL  GARDENS,  LONDON,  S.W. : 
November  1874. 


LECTURES 

OIT   THT? 

EARLY    HISTORY   OF    INSTITUTIONS. 

LECTURE  I. 

NEW   MATERIALS   FOB    THE   EARLY   HISTORY 
OF    INSTITUTIONS. 

THE  SOURCES  of  information  concerning  the  early 
history  of  institutions  which  have  been  opened  to  us 
during  the  last  few  years  are  numerous  and  valuable. 
On  one  subject  in  particular,  which  may  be  confi- 
dently said  to  have  been  almost  exclusively  investi- 
gated till  lately  by  writers  who  had  followed  a  false 
path,  the  additions  to  our  knowledge  are  of  special 
interest  and  importance.  We  at  length  know  some- 
thing concerning  the  beginnings  of  the  great  institu- 
tion of  Property  in  Land.  The  collective  ownership  of 
the  soil  by  groups  of  men  either  in  fact  united  by 
blood-relationship,  or  believing  or  assuming  that  they 
are  so  united,  is  now  entitled  to  take  rank  as  an 
ascertained  primitive  phenomenon,  once  universally 
characterising  those  communities  of  mankind  between 
•vhose  civilisation  and  our  own  there  is  any  distinct 

B 


LANDED   PKOPERTY   IN   RUSSIA.  LECT.  L 

t.'onnection  or  analogy.  The  evidence  has  been  found 
on  all  sides  of  us,  dimly  seen  and  verifiable  with  diffi- 
culty in  countries  which  have  undergone  the  enormous 
pressure  of  the  Roman  Empire,  or  which  have  been 
strongly  affected  by  its  indirect  influence,  but  perfectly 
plain  and  unmistakeable  in  the  parts  of  the  world, 
peopled  by  the  Aryan  race,  where  the  Empire  has 
made  itself  felt  very  slightly  or  not  at  all.  As  regards 
the  Sclavonic  communities,  the  enfranchisement  of  the 
peasantry  of  the  Russian  dominions  in  Europe  has 
given  a  stimulus  to  enquiries  which  formerly  had  at- 
tractions for  only  a  few  curious  observers,  and  the 
amount  of  information  collected  has  been  very  large. 
We  now  know  much  more  clearly  than  we  did  before 
that  the  soil  of  the  older  provinces  of  the  Russian 
Empire  has  been,  from  time  immemorial,  almost  exclu- 
sively distributed  among  groups  of  self-styled  kins- 
men, collected  in  cultivating  village-communities,  self- 
organised  and  self-governing;  and,  since  the  great 
measure  of  the  present  reign,  the  collective  rights  of 
these  communities,  and  the  rights  and  duties  of  their 
members  in  respect  of  one  another,  are  no  longer  en- 
tangled with  and  limited  by  the  manorial  privileges  of 
an  owner-in-chief.  There  is  also  fresh  evidence  that 
the  more  backward  of  the  outlying  Sclavonic  societies 
are  constituted  upon  essentially  the  same  model ;  and  it 
is  one  of  the  facts  with  which  the  Western  world  will 
some  day  assuredly  have  to  reckon,  that  the  political 


LECT.  i.  VESTIGES   OF   VILLAGE-COMMUNITY.  3 

ideas  of  so  large  a  portion  of  the  human  race,  and 
its  ideas  of  property  also,  are  inextricably  bound  up 
with  the  notions  of  family  interdependency,  of  col- 
lective ownership,  and  of  natural  subjection  to 
patriarchal  power.  The  traces  of  the  ancient  social 
order  in  the  Germanic  and  Scandinavian  countries 
are,  I  need  scarcely  say,  considerably  fainter,  and 
tend  always  to  become  more  obscured;  but  the  re- 
examination  of  the  written  evidence  respecting  ancient 
Teutonic  life  and  custom  proceeds  without  intermis- 
sion, and  incidentally  much  light  has  been  thrown  on 
the  early  history  of  property  by  the  remarkable  work 
of  Sohm  ('  Frankische  Reichs-und  Gerichtsverfass- 
ung').  The  results  obtained  by  the  special  method 
of  G.  L.  Von  Maurer  have  meantime  been  verified  by 
comparison  with  phenomena  discovered  in  the  most 
unexpected  quarters.  The  researches  of  M.  de 
Laveleye,  in  particular,  have  been  conducted  over  a 
field  of  very  wide  extent ;  and,  although  I  dissent 
from  some  of  the  economic  conclusions  to  which  he 
has  been  led,  I  cannot  speak  too  highly  of  the  value 
of  the  materials  collected  by  him,  and  described  in 
the  recently  published  volume  which  he  has  entitled 
4  La  Proprie*te*  et  ses  Formes  Primitives.'  I  have 
not  observed  that  the  vestiges  left  on  the  soil  and 
law  of  England  and  of  the  Scottish  Lowlands  by  the 
ancient  Village-Community  have  been  made  the 
subject  of  any  published  work  since  the  monograph 

B  2 


4  VESTIGES   OF   VILLAGE -COMMUNITY.  LBCT.  t 

of  Nasse  on  the  '  Land  Community  of  the  Middle 
Ages '  was  given  to  the  world,  and  since  the  lectures 
delivered  in  this  place  three  years  since  appeared  in 
print.  Nobody,  however,  who  knows  the  carefulness 
with  which  an  English  Court  of  Justice  sifts  the  ma- 
terials brought  before  it  will  wonder  at  my  attaching 
a  special  importance  to  the  judgment  of  Lord  Chan- 
cellor Hatherley,  given  in  a  difficult  case  which  arose 
through  a  dispute  between  different  classes  of  persons 
interested  in  a  manor,  Warrick  against  Queen's  Col- 
lege, Oxford  (reported  in  6  Law  Reports,  Chancery 
Appeals,  716).  It  appears  to  me  to  recognise  the  traces 
of  a  state  of  things  older  than  the  theoretical  basis  of 
English  Real  Property  Law,  and,  so  far  as  it  goes,  to 
allow  that  the  description  of  it  given  here  was  correct. 
Meanwhile,  if  I  may  judge  from  the  communications 
which  do  not  cease  to  reach  me  from  India,  and  from 
various  parts  of  this  country,  the  constitution  of  the 
Village- Community,  as  it  exists,  and  as  it  existed,  is 
engaging  the  attention  of  a  large  number  of  indus- 
trious observers,  and  the  facts  bearing  npon  the  sub- 
ject, which  I  hope  will  some  day  be  made  public, 
prove  to  exist  in  extraordinary  abundance. 

There  was  no  set  of  communities  which  until 
recently  supplied  us  with  information  less  in  amount 
and  apparent  value  concerning  the  early  his- 
tory of  law  than  those  of  Celtic  origin.  This  was 
the  more  remarkable,  because  one  particular  group 


T.  i.  CELTIC   SOCIETIES.  5 

of  small  Celtic  societies,  which  have  engrossed  more 
than  their  share  of  the  interest  of  this  country — the 
clans  of  the  Scottish  Highlands — had  admittedly 
retained  many  of  the  characteristics,  and  in  particular 
the  political  characteristics,  of  a  more  ancient  condi- 
tion of  the  world,  almost  down  to  our  own  day.  But 
the  explanation  is,  that  all  Celtic  societies  were  until 
recently  seen  by  those  competent  to  observe  them 
through  a  peculiarly  deceptive  medium.  A  veil 
spread  by  the  lawyers,  a  veil  woven  of  Roman  law 
and  of  that  comparatively  modern  combination  of 
primitive  and  Roman  law  which  we  call  feudalism, 
hung  between  the  Highland  institutions  and  the 
shrewd  investigating  genius  of  the  Scottish  Low- 
landers.  A  thick  mist  of  feudal  law  hid  the  ancient 
constitution  of  Irish  society  from  English  observa- 
tion, and  led  to  unfounded  doubts  respecting  the 
authenticity  of  the  laws  of  Wales.  The  ancient  or- 
ganisation of  the  Celts  of  Gaul,  described  by  Cassar 
with  the  greatest  clearness  and  decisiveness,  appeared 
to  have  entirely  disappeared  from  France,  partly 
because  French  society  was  exclusively  examined  for 
many  centuries  by  lawyers  trained  either  hi  Roman 
or  in  highly  feudalised  law,  but  partly  also  because 
the  institutions  of  the  Gallic  Celts  had  really  passed 
under  the  crushing  machinery  of  Roman  legislation. 
I  do  not,  indeed,  mean  to  say  that  this  darkness  has 
not  recently  given  signs  of  lifting.  It  has  been  re- 


CELTIC  INSTITUTIONS.  riser.  I. 

cognised  that  the  collections  of  Welsh  laws  published 
by  the  Record  Commission,  though  their  origin  and 
date  are  uncertain,  are  undoubtedly  bodies  of  genuine 
legal  rules ;  and,  independently  of  the  publications  to 
which  I  am  about  to  direct  attention,  the  group  of 
Irish  scholars,  distinguished  by  remarkable  sobriety 
of  thought,  which  has  succeeded  a  school  almost  in- 
famous for  the  unchastened  license  of  its  speculations 
on  history  and  philology,  had  pointed  out  many 
things  in  Irish  custom  which  connected  it  with  the 
archaic  practices  known  to  be  still  followed  or  to 
have  been  followed  by  the  Germanic  races.  As  early 
as  1837  Mr.  W.  F.  Skene,  in  a  work  of  much  value 
called  '  The  Highlanders  of  Scotland/  had  corrected 
many  of  the  mistakes  on  the  subject  of  Highland 
usage  into  which  writers  exclusively  conversant  with 
feudal  rules  had  been  betrayed ;  and  the  same  emi- 
nent antiquarian,  in  an  appendix  to  his  edition  of  the 
Scottish  chronicler,  Fordun,  published  in  1872,  con- 
firms evidence  which  had  reached  me  in  considerable 
quantities  from  private  sources  to  the  effect  that  vil- 
lage-communities with  '.shifting  severalties '  existed 
in  the  Highlands  within  living  memory.  Quite  re- 
cently, also,  M.  Le  Play  and  others  have  come  upon 
plain  traces  of  such  communities  in  several  parts  of 
France.  A  close  re-examination  of  the  Custumals  or 
manuals  of  feudal  rules  plentiful  in  French  legal 
literature,  led  farther  to  some  highly  interesting 


LECT.  l.  ANCIENT   FRENCH   COMMUNITIES.  7 

results.  It  clearly  appeared  from  them  that  com- 
munities of  villeins  were  constantly  found  on  the 
estates  of  the  French  territorial  nobility.  The  legal 
writers  have  always  represented  these  as  voluntary 
associations,  which  were  rather  favoured  by  the  lord 
on  account  of  the  greater  certainty  and  regularity 
with  which  their  members  rendered  him  suit  and 
service.  As  a  rule,  when  a  tenant  holding  by  base 
tenure  died,  the  lord  succeeded  in  the  first  instance 
to  his  land,  a  rule  of  which  there  are  plain  traces  in 
our  English  law  of  copyhold.  But  it  is  expressly 
stated  that,  in  the  case  of  an  association  of  villeins, 
the  lord  did  not  resume  their  land,  being  supposed  to 
be  compensated  by  their  better  ability  to  furnish  his 
dues.  Now  that  the  explanation  has  once  been 
given,  there  can  be  no  doubt  that  these  associations 
were  not  really  voluntary  partnerships,  but  groups  of 
kinsmen ;  not,  however,  so  often  organised  on  the 
ordinary  type  of  the  Village -Community  as  on  that  of 
the  House-Community,  which  has  recently  been  ex- 
amined in  Dalmatia  and  Croatia.  Each  of  them  was 
what  the  Hindoos  call  a  Joint  Undivided  Family,  a 
collection  of  assumed  descendants  from  a  common  an- 
cestor, preserving  a  common  hearth  and  common  meals 
during  several  generations.  There  was  no  escheat  of 
the  land  to  the  lord  on  a  death,  because  such  a  cor- 
poration never  dies,  and  the  succession  is  perpetual. 
But  much  the  most  instructive  contribution  to 


8  ANCIENT    LAWS    OF    IRELAND.  user,  t 

our  knowledge  of  the  ancient  Celtic  societies  lias 
been  furnished  by  the  Irish  Government,  in  the 
translations  of  the  Ancient  Laws  of  Ireland,  which 
have  been  published  at  its  expense.  The  first  volume 
of  these  translations  was  published  in  1865  ;  the  se- 
cond in  1869;  the  third,  enriched  with  some  valuable 
prefaces,  has  only  just  appeared.  No  one  interested 
in  the  studies  which  are  now  occupying  us  could  fail 
to  recognise  the  importance  of  the  earlier  volumes, 
but  there  was  much  difficulty  in  determining  their 
exact  bearing  on  the  early  history  of  Celtic  institu- 
tions. The  bulk  of  the  law  first  published  consisted 
in  a  collection  of  rules  belonging  to  what  in  our 
modern  legal  language  we  should  call  the  Law  of 
Distress.  Now,  in  very  ancient  bodies  of  rules  the 
Law  of  Distress,  as  I  shall  endeavour  to  explain 
hereafter,  is  undoubtedly  entitled  to  a  very  different 
place  from  that  which  would  be  given  to  it  in  any 
modern  system  of  jurisprudence ;  but  still  it  is  a 
highly  special  branch  of  law  in  any  stage  of  develop- 
ment. There  is,  however,  another  more  permanent 
and  more  serious  cause  of  embarrassment  in  drawing 
conclusions  from  these  laws.  Until  comparatively 
lately  they  were  practically  unintelligible ;  and  they 
were  restored  to  knowledge  by  the  original  transla- 
tors, Dr.  O'Donovan  and  Dr.  O'Curry,  two  very  re- 
markable men,  both  of  whom  are  now  dead.  The 
translations  have  been  carefully  revised  by  the 


LBCT.  x.  ANCIENT   LAWS   OP   IRELAND.  9 

learned  editor  of  the  Irish  text ;  but  it  is  probable 
that  several  generations  of  Celtic  scholars  will  have 
had  to  interchange  criticisms  on  the  language  of  the 
laws  before  the  reader  who  approaches  them  without 
any  pretension  to  Celtic  scholarship  can  be  quite 
sure  that  he  has  the  exact  meaning  of  every  passage 
before  him.  The  laws,  too,  I  need  scarcely  say,  are 
full  of  technical  expressions;  and  the  greatest  scholar 
who  has  not  had  a  legal  training — and,  indeed,  up  to 
a  certain  point  when  he  has  had  a  legal  training — 
may  fail  to  catch  the  exact  excess  or  defect  of  mean- 
ing which  distinguishes  a  word  in  popular  use  from 
the  same  word  employed  technically.  Such  consi- 
derations suggest  the  greatest  possible  caution  in 
dealing  with  this  body  of  rules.  In  what  follows  I 
attempt  to  draw  inferences  only  when  the  meaning 
and  drift  of  the  text  seem  reasonably  certain,  and  I 
have  avoided  some  promising  lines  of  enquiry  which 
would  lead  us  through  passages  of  doubtful  sig- 
nification. 

The  value  which  the  Ancient  Laws  of  Ireland,  the 
so-called  Brehon  laws,  will  possess  when  they  are 
completely  published  and  interpreted,  may,  I  think, 
be  illustrated  in  this  way.  Let  it  be  remembered 
that  the  Roman  Law,  which,  next  to  the  Christian 
Religion,  is  the  most  plentiful  source  of  the  rules  go- 
verning actual  conduct  throughout  Western  Europe, 
is  descended  from  a  small  body  of  Aryan  customs  re- 


10  ANCIENT   KOMAN  AND   IRISH   LAW.  IECX.  li 

duced  to  writing  in  the  fifth  century  before  Christ, 
and  known  as  the  Twelve  Tables  of  Rome.  Let 
it  farther  be  recollected  that  this  law  was  at  first 
expanded  and  developed,  not  at  all,  or  very  slightly, 
by  legislation,  but  by  a  process  which  we  may 
perceive  still  in  operation  in  various  communities — the 
juridical  interpretation  of  authoritative  texts  by 
successive  generations  of  learned  men.  Now,  the 
largest  collection  of  Irish  legal  rules,  which  has 
come  down  to  us,  professes  to  be  an  ancient  Code, 
with  an  appendage  of  later  glosses  and  commentaries  ; 
and,  if  its  authenticity  could  be  fully  established,  this 
ancient  Irish  Code  would  correspond  historically  to 
the  Twelve  Tables  of  Rome,  and  to  many  similar 
bodies  of  written  rules  which  appear  in  the  early 
history  of  Aryan  societies.  There  is  reason,  how- 
ever, to  think  that  its  claims  to  antiquity  cannot  be 
sustained  to  their  full  extent,  and  that  the  Code  itself 
is  an  accretion  of  rules  which  have  clustered  round 
an  older  nucleus.  But  that  some  such  kernel  or 
perhaps  several  such  kernels  of  written  law  existed, 
is  highly  probable,  and  it  is  also  probable  that  the 
whole  of  the  Brehon  law  consists  of  them  and  of 
accumulations  formed  upon  them.  It  is  farther 
probable  that  the  process  by  which  these  accumula- 
tions were  formed  was,  as  in  the  infancy  of  the 
Roman  State,  juridical  interpretation.  According  to 
the  opinion  which  I  follow,  the  interesting  fact  about 


LBCT.  I.          INFLUENCE   OP   THE   ROMAN  EMPIRE.  11 

the  ancient  Irish  law  is,  that  this  process  was  ex- 
clusive, and  that  none  of  the  later  agencies  by  which 
law  is  transformed  came  into  play.  The  Brehon 
laws  are  in  no  sense  a  legislative  construction,  and 
thus  they  are  not  only  an  authentic  monument  of  a 
very  ancient  group  of  Aryan  institutions  ;  they  are 
also  a  collection  of  rules  which  have  been  gradually 
developed  in  a  way  highly  favourable  to  the  preser- 
vation of  archaic  peculiarities.  Two  causes  have 
done  most  to  obscure  the  oldest  institutions  of  the 
portion  of  the  human  race  to  which  we  belong :  one 
has  been  the  formation  throughout  the  West  of  strong 
centralised  governments,  concentrating  in  themselves 
the  public  force  of  the  community,  and  enabled  to 
give  to  that  force  upon  occasion  the  special  form  of 
legislative  power  ;  the  other  has  been  the  influence, 
direct  and  indirect,  of  the  Roman  Empire,  drawing 
with  it  an  activity  in  legislation  unknown  to  the 
parts  of  the  world  which  were  never  subjected  to  it. 
Now,  Ireland  is  allowed  on  all  hands  to  have  never 
formed  part  of  the  Empire;  it  was  very  slightly 
affected  from  a  distance  by  the  Imperial  law;  and, 
even  if  it  be  admitted  that,  during  certain  intervals 
of  its  ancient  history,  it  had  a  central  government, 
assuredly  this  government  was  never  a  strong  one. 
Under  these  circumstances  it  is  not  wonderful  that 
the  Brehon  law,  growing  together  without  legislation 
upon  an  original  body  of  Aryan  custom,  and  formed 


12  IRISH   AND   HINDOO   LAW.  user.  L 

beyond  the  limit  of  that  cloud  of  Koraan  juridical 
ideas  which  for  many  centuries  overspread  the  whole 
Continent,  and  even  at  its  extremity  extended  to 
England,  should  present  some  very  strong  analogies 
to  another  set  of  derivative  Aryan  usages,  the  Hindoo 
law,  which  was  similarly  developed.  The  curious 
and  perplexing  problems  which  such  a  mode  of 
growth  suggests  have  to  be  grappled  with  by  the 
student  of  either  system. 

The  ancient  laws  of  Ireland  have  come  down  to 
us  as  an  assemblage  of  law-tracts,  each  treating  of 
some  one  subject  or  of  a  group  of  subjects.  The 
volumes  officially  translated  and  published  contain 
the  two  largest  of  these  tracts,  the  Senchus  Mor,  or 
Great  Book  of  the  Ancient  Law,  and  the  Book  of 
Aicill.  While  the  comparison  of  the  Senchus  Mor 
and  of  the  Book  of  Aicill  with  other  extant  bodies  of 
archaic  rules  leaves  no  doubt  of  the  great  antiquity 
of  much  of  their  contents,  the  actual  period  at  which 
they  assumed  their  present  shape  is  extremely 
uncertain.  Mr.  Whitley  Stokes,  one  of  the  most 
eminent  of  living  Celtic  scholars,  believes,  upon  con- 
sideration of  its  verbal  forms,  that  the  Senchus  Mor 
was  compiled  in  or  perhaps  slightly  before  the  eleventh 
century ;  and  there  appears  to  be  internal  evidence 
which  on  the  whole  allows  us  to  attribute  the  Book 
of  Aicill  to  the  century  preceding.  The  Senchus 
Mor,  it  is  true,  expressly  claims  for  itself  a  far  earlier 


IJCT.  I.  DATES   OF   IRISH   LAW-TRACTS.  13 

origin.  In  a  remarkable  preface,  of  which  I  shall 
have  much  to  say  hereafter,  it  gives  an  account, 
partly  in  verse,  of  the  circumstances  under  which  it 
was  drawn  up,  and  it  professes  to  have  been  compiled 
during  the  life  and  under  the  personal  influence  of 
St.  Patrick.  These  pretensions  have  been  ingeniously 
supported,  but  there  is  not  much  temerity,  I  think, 
in  refusing  to  accept  the  fifth  century  as  the  date  of 
the  Senchus  Mor.  At  the  same  time  it  is  far  from 
impossible  that  the  writing  of  the  ancient  Irish  laws 
began  soon  after  the  Christianisation  of  Ireland.  It 
was  Christianity,  a  '  religion  of  a  book,'  which  for  the 
first  time  introduced  many  of  the  ruder  nations  out- 
side the  Empire  to  the  art  of  writing.  We  cannot 
safely  claim  for  the  Celts  of  Ireland,  in  the  fifth 
century  of  the  Christian  era,  precisely  the  same 
degree  of  culture  which  Caesar  attributes  to  the  Celts 
of  the  Continent  in  the  first  century  before  Christ ; 
but,  even  if  we  could  do  so,  Caesar  expressly  states 
of  the  Gauls  that,  though  they  were  acquainted  with 
writing,  they  had  superstitious  scruples  about  using 
written  characters  to  preserve  any  part  of  their  sacred 
literature,  in  which  their  law  would  then  be  included. 
Such  objections  would,  however,  necessarily  disappear 
with  the  conversion  of  the  Irish  people  to  Christianity. 
On  the  whole  there  is  no  antecedent  improbability 
in  the  tradition  that,  soon  after  this  conversion,  the 
usages  of  the  Irish  began  to  be  stated  in  writing,  and 


14  ANCIENT   LAW   IN  VERSE.  tEcr.  I. 

Celtic  scholars  have  detected  not  a  little  evidence 
that  parts  of  these  more  venerable  writings  are  im- 
bedded in  the  text  of  the  Book  of  Aicill  and  of  the 
Senchus  Mor. 

It  is  extremely  likely  that  the  most  ancient  law 
was  preserved  in  rude  verse  or  rhythmical  prose.  In 
the  oldest  Irish  traditions  the  lawyer  is  distinguished 
with  difficulty  from  the  poet,  poetry  from  literature. 
Both  in  the  Senchus  Mor  and  in  the  Book  of  Aicill 
the  express  statement  of  the  law  is  described  as 
'  casting  a  thread  of  poetry '  about  it,  and  the 
.traditional  authors  of  the  Senchus  Mor  are  said  to 
have  exhibited  *  all  the  judgment  and  poetry  of  the 
men  of  Erin.'  Modern  Irish  scholarship  has,  in  fact, 
discovered  that  portions  of  the  Senchus  Mor  are 
really  in  verse.  The  phenomenon  is  not  unfamiliar. 
Mr.  Grote,  speaking  of  the  Elegiacs  of  Solon,  and  of 
the  natural  priority  of  verse  to  prose,  says  (History 
of  Greece,  iii.  119),  'the  acquisitions  as  well  as  the 
effusions  of  an  intellectual  man,  even  in  the  simplest 
form,  (then)  adjusted  themselves  not  to  the  limitations 
of  the  period  and  semicolon,  but  to  those  of  the 
hexameter  and  pentameter.'  There  is  no  question, 
I  conceive,  that  this  ancient  written  verse  is  what  is 
now  called  a  survival,  descending  to  the  first  ages  of 
written  composition  from  the  ages  when  measured 
rhythm  was  absolutely  essential,  in  order  that  the 
memory  might  bear  the  vast  burdens  placed  upon  it. 


mrr.  x.  FORM   OF   BREHON  TRACTS.  16 

It  is  now  generally  agreed  that  the  voluminous 
versified  Sanscrit  literature,  which  embraces  not  only 
the  poetry  of  the  Hindoos,  but  most  of  their  religion, 
much  of  what  stands  to  them  in  place  of  history,  and 
something  even  of  their  law,  was  originally  preserved 
by  recollection  and  published  by  recitation  ;  and  even 
now,  in  the  Sanscrit  schools  which  remain,  the  pupil 
is  trained  to  exercises  of  memory  which  are  little 
short  of  miraculous  to  an  Englishman. 

The  tracts  are  of  very  unequal  size,  and  the  sub- 
jects they  embrace  are  of  very  unequal  importance. 
But  all  alike  consist  of  an  original  text,  divided  into 
paragraphs.  Above  or  over  against  the  principal 
words  of  the  text  glosses  or  interpretations  are  written 
in  a  smaller  hand,  and  a  paragraph  is  constantly 
followed  by  an  explanatory  commentary,  also  in  a 
smaller  hand,  written  in  the  space  which  separates 
the  paragraph  from  the  next.  The  scarcity  of  mate- 
rial for  writing  may  perhaps  sufficiently  account  for 
the  form  taken  by  the  manuscripts;  but  the  Celts 
seem  to  have  had  a  special  habit  of  glossing,  and  you 
may  have  heard  that  the  glosses  written  by  early 
Irish  monks  between  the  lines  or  on  the  margin  of 
manuscripts  belonging  to  religious  houses  on  the 
Continent  had  much  to  do  with  the  wonderful  dis- 
coveries of  Zeuss  in  Celtic  philology.  A  facsimile  of 
part  of  two  Brehon  manuscripts,  one  in  the  British 
Museum,  and  the  other  in  the  Library  of  Trinity 


16  FORM  OP  BREHON  TRACTS.  LEUT.  I. 

College,  Dublin,  may  be  seen  at  the  beginning  of  the 
second  published  volume  of  the  translations.  It  seems 
probable  that  each  tract  was  the  property,  and  that 
it  sets  forth  the  special  legal  doctrines,  of  some  body 
of  persons  who,  in  modern  legal  phrase,  had  perpetual 
succession,  a  Family  or  Law  School;  there  is  ample 
evidence  of  the  existence  of  such  law  schools  in 
ancient  Ireland,  and  they  are  another  feature  of  resem- 
blance to  the  India  of  the  past  and  in  some  degree  to 
the  India  of  the  present. 

The  text  of  each  of  the  published  tracts  appears  to 
have  been  put  together  by  one  effort,  no  doubt  from 
pre-existing  materials,  and  it  may  have  been  written 
continuously  by  some  one  person ;  but  the  additions 
to  it  must  be  an  accumulation  of  explanations  and 
expositions  of  various  dates  by  subsequent  possessors 
of  the  document.  I  quite  agree  with  the  observation 
of  the  Editors,  that,  while  the  text  is  for  the  most  part 
comparatively  consistent  arid  clear,  the  commentary 
is  often  obscure  and  contradictory.  Precisely  the 
same  remark  is  frequently  made  by  Anglo-Indian 
Judges  on  the  Brahminical  legal  treatises,  some  of 
which  are  similarly  divided  into  a  text  and  a  com- 
mentary. As  regards  the  ancient  Irish  law,  the  result 
of  the  whole  process  is  anything  but  satisfactory  to  the 
modern  reader.  I  do  not  know  that,  in  any  extant 
body  of  legal  rules,  the  difficulty  of  mastering  the 
contents  has  ever  been  so  seriously  aggravated  by  the 


.  MANUSCRIPTS   OF   IRISH   LAW.  17 

repulsiveness  of  the  form.  One  of  the  editors  has  un- 
kindly, but  not  unjustly,  compared  a  Brehon  tract  to 
the  worst  kind  of  English  law-book,  without  even  the 
moderate  advantage  of  an  alphabetical  arrangement. 

The  exact  date  at  which  the  existing  manuscripts 
were  written  cannot  be  satisfactorily  settled  until 
they  are  all  made  accessible,  which  unfortunately  they 
are  not  at  present.  But  we  know  one  MS.  of  the 
Scnchus  Mor  to  be  at  least  as  old  as  the  fourteenth 
century,  since  a  touching  note  has  been  written  on  it 
by  a  member  of  the  family  to  which  it  belonged : 
'  One  thousand  three  hundred  two  and  forty  years 
from  the  birth  of  Christ  till  this  night ;  and  this  is 
the  second  year  since  the  coming  of  the  plague  into 
Ireland.  I  have  written  this  in  the  20th  year  of  my 
age.  I  am  Hugh,  son  of  Conor  McEgan,  and  who- 
ever reads  it  let  him  offer  a  prayer  of  mercy  for 
my  soul.  This  is  Christmas  night,  and  on  this  night 
I  place  myself  under  the  protection  of  the  King  of 
Heaven  and  Earth,  beseeching  that  he  will  bring  me 
and  my  friends  safe  through  the  plague.  Hugh 
wrote  this  in  his  own  father's  book  in  the  year  of  the 
great  plague.' 

The  system  of  legal  rules  contained  in  these 
law-tracts  is  undoubtedly  the  same  with  that  repeat- 
edly condemned  by  Anglo-Irish  legislation,  and  re- 
peatedly noticed  by  English  observers  of  Ireland 
down  to  the  early  part  of  the  seventeenth  century 

c 


18  ENGLISH   CENSURES  OF   BREIION  LAW.         LECT.  i. 

It  is  the  same  law  which,  in  1367,  ?  statute  of  Kil- 
kenny denounces  as  '  wicked  and  damnable.'  It  is 
the  same  law  which  Edmund  Spenser,  in  his  l  View 
of  the  State  of  Ireland/  describes  as  '  a  rule  of  right 
unwritten,  but  delivered  by  tradition  from  one  to 
another,  in  which  oftentimes  there  appeareth  a  great 
show  of  equity,  in  determining  the  right  between 
party  and  party,  but  in  many  things  repugning  quite 
both  to  God's  law  and  man's.'  It  is  the  same  '  lewd  ' 
and  '  unreasonable  '  custom  which  Sir  John  Davis  con- 
trasts with  the  'just  and  honourable  law  of  England,' 
and  to  which  he  attributes  such  desolation  and  bar- 
barism in  Ireland,  'as  the  like  was  never  seen  in  any 
country  that  professed  the  name  of  Christ.'  It  is  not 
our  business  in  this  department  of  study  to  enquire 
how  fa.r  this  violent  antipathy  was  politically  justifi- 
able. Even  if  the  worst  that  has  been  said  by  Eng- 
lishmen of  the  Brehon  law  down  to  our  own  day 
were  true,  we  might  console  ourselves  by  turning  our 
eyes  to  spheres  of  enquiry  fuller  of  immediate  promise 
to  the  world  than  ours,  and  observing  how  much  of 
the  wealth  of  modern  thought  has  been  obtained 
from  the  dross  which  earlier  generations  had  rejected 
Meanwhile,  happily,  it  is  a  distinct  property  of  the 
Comparative  Method  of  investigation  to  abate  national 
prejudices.  I  myself  believe  that  the  government  of 
India  by  the  English  has  been  rendered  appreciably 
easier  by  the  discoveries  which  have  brought  home  to 
the  educated  of  both  races  the  common  Aryan  parent- 


LECT.  I.      HISTORICAL   CHARACTER   OP   BREHON   I  AW.  19 

age  of  Englishman  and  Hindoo.  Similarly,  I  a:n  not 
afraid  to  anticipate  that  there  will  some  day  be  more 
hesitation  in  repeating  the  invectives  of  Spenser  and 
Davis,  when  it  is  once  clearly  understood  that  the 
'  lewd '  institutions  of  the  Irish  were  virtually  the 
same  institutions  as  those  out  of  which  the  'just  and 
honourable  law '  of  England  grew.  Why  these  insti- 
tutions followed  in  their  development  such  different 
paths  it  is  the  province  of  History  to  decide ;  but, 
when  it  gives  an  impartial  decision,  I  doubt  much  its 
wholly  attributing  the  difference  to  native  faults  of 
Irish  character.  We,  who  are  able  here  to  examine 
coolly  the  ancient  Irish  law  in  an  authentic  form,  can 
see  that  it  is  a  very  remarkable  body  of  archaic  law, 
unusually  pure  from  its  origin.  It  has  some  analogies 
with  the  Roman  law  of  the  earliest  times,  some  with 
Scandinavian  law,  some  with  the  law  of  the  Sclavonic 
races,  so  far  as  it  is  known,  some  (and  these  particu- 
larly strong)  with  the  Hindoo  law,  and  quite  enough 
with  old  Germanic  law  of  all  kinds,  to  render  value- 
less, for  scientific  purposes,  the  comparison  which  the 
English  observers  so  constantly  institute  with  the 
laws  of  England.  It  is  manifestly  the  same  system 
in  origin  and  principle  with  that  which  has  descended 
to  us  as  the  Laws  of  Wales,  but  these  last  have  some- 
how undergone  the  important  modifications  which 
arise  from  the  establishment  of  a  comparatively  strong 
central  authority.  Nor  does  the  Brehon  law  alto- 

el 


20      ADVANCED  LEGAL  DOCTRINES  IN  BREHON  LAW.     LECT.  I. 

gether  disappoint  the  expectations  of  the  patriotic 
Irishmen  who,  partly  trusting  to  the  testimony  of 
Edmund  Spenser,  the  least  unkind  of  the  English 
critics  of  Ireland,  though  one  of  the  most  ruthless  in 
his  practical  suggestions,  looked  forward  to  its  mani- 
festing, when  it  was  published,  an  equity  and  reason- 
ableness which  would  put  to  shame  the  barbarous 
jurisprudence  of  England.  Much  of  it — I  am  afraid 
I  must  say,  most  of  it — is  worthless  save  for  historical 
purposes,  but  on  some  points  it  really  does  come  close 
to  the  most  advanced  legal  doctrines  of  our  day.  The 
explanation — which  I  will  hereafter  give  at  length — I 
believe  to  lie  in  the  method  of  its  development,  which 
has  not  been  through  the  decisions  of  courts,  but  by 
the  opinions  of  lawyers  on  hypothetical  states  of  fact. 
I  think  I  may  lay  down  that,  wherever  we 
have  any  knowledge  of  a  body  of  Aryan  custom, 
either  anterior  to  or  but  slightly  affected  by  the 
Roman  Empire,  it  will  be  found  to  exhibit  some 
strong  points  of  resemblance  to  the  institutions  which 
are  the  basis  of  the  Brehon  law.  The  depth  to 
which  the  Empire  has  stamped  itself  on  the  political 
arrangements  of  the  modern  world  has  been  illustrated 
of  late  years  with  much  learning ;  but  I  repeat  my 
assertion  that  the  great  difference  between  the  Roman 
Empire  and  all  other  sovereignties  of  the  ancient 
world  lay  in  the  activity  of  its  legislation,  through 
the  Edicts  of  the  Praetor  and  the  Constitutions  of  the 


user.  i.  ORIGIN   OF  SENCHUS  MOR.  21 

Emperors.  For  many  races,  it  actually  repealed  their 
customs  and  replaced  them  by  new  ones.  For  others, 
the  results  of  its  legislation  mixed  themselves  indis- 
tinguishably  with  their  law.  With  others,  it  introduced 
or  immensely  stimulated  the  habit  of  legislation ;  and 
this  is  one  of  the  ways  in  which  it  has  influenced  the 
stubborn  body  of  Germanic  custom  prevailing  in 
Great  Britain.  But  wherever  the  institutions  of  any 
Aryan  race  have  been  untouched  by  it,  or  slightly 
touched  by  it,  the  common  basis  of  Aryan  usage  ia 
perfectly  discernible  ;  and  thus  it  is  that  these  Brehon 
law -tracts  enable  us  to  connect  the  races  at  the  east- 
ern and  western  extremities  of  a  later  Aryan  world, 
the  Hindoos  and  the  Irish. 

The  Lectures  which  follow  will  help,  I  trust,  to 
show  what  use  the  student  of  comparative  jurispru- 
dence may  make  of  this  novel  addition  to  our 
knowledge  of  ancient  law.  Meantime,  there  is  some 
interest  in  contrasting  the  view  of  its  nature,  origin, 
and  growth,  which  we  are  obliged  to  take  here,  with 
that  to  which  the  ancient  Irish  practitioners  occa- 
sionally strove  hard  to  give  currency.  The  Senchus 
Mor,  the  Great  Book  of  the  Ancient  Law,  was  doubt- 
less a  most  precious  possession  of  the  law-school  or 
family  to  which  it  belonged;  and  its  owners  have 
joined  it  to  a  preface  in  which  a  semi-divine  author- 
ship is  boldly  claimed  for  it.  Odhran,  the  charioteer 
of  St.  Patrick — so  says  this  preface — had  been  killed. 


22 


PREFACE   OP  SENCHUS  MOR. 


LKCT  L 


and  the  question  arose  whether  Nuada,  the  slayer, 
should  die,  or  whether  the  saint  was  bound  by  his  own 
principles  to  unconditional  forgiveness.  St.  Patrick 
did  not  decide  the  point  himself;  the  narrator,  in  true 
professional  spirit,  tells  us  that  he  set  the  precedent 
according  to  which  a  stranger  from  beyond  the  sea 
always  selects  a  legal  adviser.  He  chose  '  to  go  ac- 
cording to  the  judgment  of  the  royal  poet  of  the  men 
of  Erin,  Dubhthach  Mac  ua  Lugair,'  and  he  '  blessed 
the  mouth '  of  Dubhthach.  A  poem,  doubtless  of 
much  antiquity  and  celebrity,  is  then  put  into  the 
mouth  of  the  arbitrator,  and  by  the  judgment  em- 
bodied in  it  Nuada  is  to  die ;  but  he  ascends  straight 
to  heaven  through  the  intercession  of  St.  Patrick. 
*  Then  King  Laeghaire  said,  "  It  is  necessary  for  you, 
0  men  of  Erin,  that  every  other  law  should  be  settled 
and  arranged  by  us  as  well  as  this."  "  It  is  better  to 
do  so,"  said  Patrick.  It  was  then  that  all  the  pro- 
fessors of  the  sciences  in  Erin  were  assembled,  and 
each  of  them  exhibited  his  art  before  Patrick,  in  the 
presence  of  every  chief  in  Erin.  It  was  then  Dubh- 
thach was  ordered  to  exhibit  all  the  judgments  and 
all  the  poetry  of  Erin,  and  every  law  which  prevailed 
umong  the  men  of  Erin.  .  .  .  This  is  the  Cain  Patraic 
and  no  human  Brehoii  of  the  Gaedhil  is  able  t' 
abrogate  anything  that  is  found  in  the  Seuchus  Mor. 
The  inspired  award  of  Dubhthach  that  Nuada 
must  die  suggests  to  the  commentator  the  following 
remark:  "  What  is  understood  from  the  above  decision 


LBCT.  i.  COMPOSITION   FOR   HOMICIDE.  3? 

which  God  revealed  to  Dubhthach  is,  that  it  was  a 
middle  course  between  forgiveness  and  retaliation;  foi 
retaliation  prevailed  in  Erin  before  Patrick,  and 
Patrick  brought  forgiveness  with  him ;  that  is,  Nuada 
was  put  to  death  for  his  crime,  and  Patrick  obtained 
heaven  for  him.  At  this  day  we  keep  between  for- 
giveness and  retaliation;  for  as  at  present  no  one 
has  the  power  of  bestowing  heaven,  as  Patrick  had  at 
that  day,  so  no  one  is  put  to  death  for  his  intentional 
crimes,  so  long  as  '  eric'  fine  is  obtained ;  and  whenever 
'  eric  '  fine  is  not  obtained,  he  is  put  to  death  for  his 
intentional  crimes,  and  placed  on  the  sea  for  his  un- 
intentional crimes."  It  is  impossible,  of  course,  to 
accept  the  statement  that  this  wide-spread  ancient  in- 
stitution, the  pecuniary  fine  levied  on  tribes  or  families 
for  the  wrongs  done  by  their  members,  had  its  origin 
in  Christian  influences;  but  that  it  succeeded  simple 
retaliation  is  in  the  highest  degree  probable,  and  no 
doubt  in  its  day  it  was  at  least  as  great  an  advantage 
to  the  communities  among  whom  it  prevailed  as  was 
that  stern  royal  administration  of  criminal  justice  to 
which  the  Englishmen  of  the  sixteenth  centuiy  were 
accustomed,  and  on  which  they  so  singularly  prided 
themselves.  But  by  the  sixteenth  century  it  may  well 
have  outlived  its  usefulness,  and  so  may  have  partially 
justified  the  invectives  of  its  English  censors,  who 
generally  have  the  '  eric  '-fine  for  homicide  in  view 
when  they  denounce  the  Brehon  law  as  *  contrary  to 
God's  law  and  man's.' 


24  SENCHUS  MOK  AND  BOOK  OF  AICILL.          LBCT.  n. 


LECTURE  II. 

THE   ANCIENT   IRISH   LAW. 

THE  great  peculiarity  of  the  ancient  laws  of  Ireland, 
so  far  as  they  are  accessible  to  us,  is  discussed,  with 
much  instructive  illustration,  in  the  General  Preface 
to  the  Third  Volume  of  the  official  translations.  They 
are  not  a  legislative  structure,  but  the  creation  of  a 
class  of  professional  lawyers,  the  Brehons,  whose 
occupation  became  hereditary,  and  who  on  that  ground 
have  been  designated,  though  riot  with  strict  accuracy, 
a  caste.  This  view,  which  is  consistent  with  all  that 
early  English  authorities  on  Ireland  have  told  us  of 
the  system  they  call  the  Brehon  law,  is  certainly  that 
which  would  be  suggested  by  simple  inspection  of 
the  law-tracts  at  present  translated  and  published. 
The  Book  of  Aicill  is  probably  the  oldest,  and  its 
text  is  avowedly  composed  of  the  dicta  of  two  famous 
lawyers,  Cormac  and  Cennfaeladh.  The  Senchus 
Mor  does,  indeed,  profess  to  have  been  produced  by  a 
process  resembling  legislation,  but  the  pretension  can- 
not be  supported ;  and,  even  if  it  could,  the  Senchus 
Mor  would  not  less  consist  of  the  opinions  of  famous 
Brehons.  It  describes  the  legal  rules  embodied  hi  its 


.  n.         INGREDIENTS    OF   THE   SENCHUS   MOB.  25 

text  as  formed  of  the  '  law  of  nature/  and  of  the  '  law 
of  the  letter.'  The  'law  of  the  letter'  is  the  Scriptural 
law,  extended  by  so  much  of  Canon  law  as  the  primitive 
monastic  Church  of  Ireland  can  be  supposed  to  have 
created  or  adopted.  The  reference  hi  the  misleading 
phrase  '  law  of  nature,'  is  not  to  the  memorable  com- 
bination of  words  familiar  to  the  Roman  lawyers,  but 
to  the  text  of  St.  Paul  in  the  Epistle  to  the  Romans: 
4  For  when  the  Gentiles,  which  have  not  the  law,  do 
by  nature  the  things  contained  in  the  law,  these, 
having  not  the  law,  are  a  law  unto  themselves.' 
(Rom.  ii.  14.)  The  4  law  of  nature'  is,  therefore,  the 
ancient  pre-Christian  ingredient  in  the  system,  and  the 
'  Senchus  Mor  '  says  of  it :  l  The  judgments  of  true 
nature  while  the  Holy  Ghost  had  spoken  through  the 
mouths  of  the  Brehons  and  just  poets  of  the  men  of 
Erin,  from  the  first  occupation  of  Ireland  down  to 
the  reception  of  the  faith,  were  all  exhibited  by 
Dubhthach  to  Patrick.  What  did  not  clash  with  the 
Word  of  God  in  the  written  law  and  the  New  Testa- 
ment and  the  consciences  of  believers,  was  confirmed 
in  the  laws  of  the  Brehons  by  Patrick  and  by  the 
ecclesiastics  and  chieftains  of  Ireland ;  for  the  law  of 
nature  had  been  quite  right  except  the  faith,  and  its 
obligations,  and  the  harmony  of  the  Church  and 
people.  And  this  is  the  "  Senchus  Mor." 

Dr.  Sullivan,  on  the  other  hand,  whose  learned 
und  exhaustive  Introduction  to  O'Curry's  Lectures 


20  LEGISLATION  AND  ANCIENT   IRISH  LAW.       LBCT.  II 

forms  the  first  volume  of  the  '  Manners  and  Cus- 
toms of  the  Ancient  Irish,'  affirms,  on  the  evidence  of 
ancient  records,  that  the  institutions  which  in  some 
communities  undoubtedly  developed  into  true  legis- 
latures had  their  counterparts  in  the  Ireland  to  which 
the  laws  belonged,  and  he  does  not  hesitate  to  desig- 
nate certain  portions  of  the  Irish  legal  system '  statute- 
law.'  In  the  present  state  of  criticism  on  Irish  docu- 
ments it  is  not  possible  to  hold  the  balance  exactly 
between  the  writers  of  the  Introduction  and  of  the 
General  Preface  ;  but  there  is  not  the  inconsistency 
between  their  opinions  which  there  might  appear  to 
be  at  first  sight.  In  the  infancy  of  society  many 
conceptions  are  found  blended  together  which  are 
now  distinct,  and  many  associations  which  are  now 
inseparable  from  particular  processes  or  institutions 
are  not  found  coupled  with  them.  There  is  abundant 
proof  that  legislative  and  judicial  power  are  not  dis- 
tinguished in  primitive  thought  ;  nor,  again,  is  legis- 
lation associated  with  innovation.  In  our  day  the 
legislator  is  always  supposed  to  innovate  ;  the  judge 
never.  But  of  old  the  legislator  no  more  necessarily 
innovated  than  the  judge;  he  only,  for  the  most  part, 
declared  pre-existing  law  or  custom.  It  is  impossible 
to  determine  how  much  new  law  there  was  in  the 
Laws  of  Solon,  or  in  the  Twelve  Tables  of  Rome,  or 
in  the  Laws  of  Alfred  and  Canute,  or  in  the  Salic 
Law  which  is  the  oldest  of  the  so-called  Leges  3ar- 


user.  n.  NATURE   OF   ANCIENT   LEGISLATION.  27 

barorum,  but  in  all  probability  the  quantity  was  ex- 
tremely small.  Thus,  when  a  body  of  Brehoa  judg- 
ments was  promulgated  by  an  Irish  Chief  to  a  tribal 
assembly,  it  is  probable  that  convenience  was  the 
object  sought  rather  than  a  new  sanction.  A  re- 
markable poem,  appended  to  O'Curry's  Lectures, 
tells  us  how  certain  Chiefs  proceeded  every  third  year 
to  the  '  Fair  of  Carman '  and  there  proclaimed  i  the 
rights  of  every  law  and  the  restraints ; '  but  it  does 
not  at  all  follow  that  this  promulgation  had  any  affi- 
nity for  legislation  in  the  modern  sense.  The  inno- 
vating legislatures  of  the  modern  world  appear  to 
have  grown  up  where  certain  conditions  were  present 
which  were  virtually  unknown  to  ancient  Ireland — 
where  the  primitive  groups  of  which  society  was 
formed  were  broken  up  with  some  completeness,  and 
where  a  central  government  was  constituted  acting 
on  individuals  from  a  distance  coercively  and  irre- 
sistibly. 

There  are,  moreover,  some  independent  reasons  for 
thinking  that,  among  the  Celtic  races,  the  half-judicial, 
half-legislative,  power  originally  possessed  by  the 
tribal  Chief,  or  by  the  tribal  Assembly,  or  by  both  in 
combination,  passed  very  early  to  a  special  class  of 
learned  persons.  The  Prefaces  in  Irish  found  at 
the  commencement  of  some  of  the  law-tracts,  which 
are  of  much  interest,  but  of  uncertain  origin  an4  date, 
contain  several  references  to  the  order  ii.  Celtic 


28  THE  DRUIDS,  user,  n, 

society  which  has  hitherto  occupied  men's  thoughts 
more  than  any  other,  the  Druids.  The  word  occurs 
in  the  Irish  text.  The  writers  of  the  prefaces  seem 
to  have  conceived  the  Druids  as  a  class  of  heathen 
priests  who  had  once  practised  magical  arts.  The 
enchanters  of  Pharaoh  are,  for  instance,  called  the 
Egyptian  Druids,  in  the  Preface  to  the  Senchus 
Mor.  The  point  of  view  seems  to  be  the  one  familiar 
enough  to  us  in  modern  literature,  where  an  exclusive 
prominence  is  given  to  the  priestly  character  of  the 
Druids;  nor  do  the  Brehon  lawyers  appear  to  connect 
themselves  with  a  class  of  men  whom  they  regard  as 
having  belonged  altogether  to  the  old  order  of  the 
world.  I  am  quite  aware  that,  in  asking  whether 
the  historical  disconnection  of  the  Brehons  and  the 
Druids  can  be  accepted  as  a  fact,  I  suggest  an  enquiry 
about  which  there  hangs  a  certain  air  of  absurdity. 
There  has  been  so  much  wild  speculation  and 
assertion  about  Druids  and  Druidical  antiquities 
that  the  whole  subject  seems  to  be  considered  as 
almost  beyond  the  pale  of  serious  discussion.  Yet 
we  are  not  at  liberty  to  forget  that  the  first  great 
observer  of  Celtic  manners  describes  the  Celts  of  the 
Continent  as  before  all  things  remarkable  for  the 
literary  class  which  their  society  included.  Let  me 
add  that  in  Caesar's  account  of  the  Druids  there  is  not 
a  word  which  does  not  appear  to  me  perfectly  credible. 
The  same  remark  may  be  made  of  Strabo  But  the 


MCT.  n.     C^SAR  S   ACCOUNT   OF   CONTINENTAL   CELTS.          29 

source  of  at  all  events  a  part  of  the  absurdities  which 
have  clustered  round  the  subject  I  take  to  be  the 
Natural  History  of  Pliny,  and  they  seem  to  belong 
to  those  stories  about  plants  and  animals  to  which 
may  be  traced  a  great  deal  of  the  nonsense  written  in 
the  world. 

You  may  remember  the  picture  given  by  CaBsar 
of  the  Continental  Celts,  as  they  appeared  to  him 
when  he  first  used  his  unrivalled  opportunities  of 
examining  them.  He  tells  us  that  their  tribal  socie- 
ties consisted  substantially  of  three  orders,  two  pri- 
vileged and  one  unprivileged,  and  these  orders  he 
calls  the  Equites,  the  Druids,  and  the  Plebeians. 
Somebody  has  said  that  this  would  be  a  not  very 
inaccurate  description  of  French  society  just  before 
the  first  Revolution,  with  its  three  orders  of  Nobles, 
Clergy,  and  unprivileged  Tiers-Etat ;  but  the  obser- 
vation is  a  good  deal  more  ingenious  than  true.  We 
are  now  able  to  compare  Caesar's  account  of  the 
Gauls  with  the  evidence  concerning  a  Celtic  commu- 
nity which  the  Brehon  tracts  supply  ;  and  if  we  use 
this  evidence  as  a  test,  we  shall  soon  make  up  our 
minds  that,  though  his  representation  is  accurate  as 
far  as  it  goes,  it  errs  in  omission  of  detail.  The 
Equites,  or  Chiefs,  though  to  some  extent  they  were 
a  class  apart,  did  not  stand  in  such  close  relation  to 
one  another  as  they  stood  to  the  various  septs  or 
groups  over  which  thoy  presided.  *  Every  chief/ 


30  OMISSIONS   IN  C^SARS   ACCOUNT.  MST.  n. 

says  the  Brehon  law,  '  rules  over  his  la*id,  whether 
it  be  small  or  whether  it  be  large.'  The  Plebeians, 
again,  so  far  from  constituting  a  great  miscellaneous 
multitude,  were  distributed  into  every  sort  of  natural 
group,  based  ultimately  upon  the  Family.  The  mis- 
take, so  far  as  there  was  error,  I  conceive  to  have 
been  an  effect  of  mental  distance.  It  had  the  imper- 
fections of  the  view  obtained  by  looking  on  the  Gan- 
getic  plains  from  the  slopes  of  the  Himalayas.  The 
impression  made  is  not  incorrect,  but  an  immensity 
of  detail  is  lost  to  the  observer,  and  a  surface  varied 
by  countless  small  elevations  looks  perfectly  flat. 
Caesar's  failure  to  note  the  natural  divisions  of  the 
Celtic  tribesmen,  the  families  and  septs  or  sub- 
tribes,  is  to  me  particularly  instructive.  The  theory 
of  human  equality  is  of  Roman  origin  ;  the  com- 
minution of  human  society,  and  the  unchecked  com- 
petition among  its  members,  which  have  gone  so  far 
in  the  Western  Europe  of  our  days,  had  their  most 
efficient  causes  in  the  mechanism  of  the  Roman  State. 
Hence  Caesar's  omissions  seem  to  be  those  most 
natural  in  a  Roman  general  who  was  also  a  great 
administrator  and  trained  lawyer ;  and  they  are  un- 
doubtedly those  to  which  an  English  ruler  of  India 
is  most  liable  at  this  moment.  It  is  often  said  that 
it  takes  two  or  three  years  before  a  Governor- 
General  learns  that  the  vast  Indian  population  is  an 
aggregate  of  natural  groups,  and  not  the  mixed  mul- 


n.        CJESAR  S    DESCRIPTION    OF   THE   DRUIDS  31 

titude  he  left  at  home ;  and  some  rulers  of  India 
have  been  accused  of  never  having  mastered  the 
lesson  at  all. 

There  are  a  few  very  important  points  of  detail 
to  be  noticed  in  Caesar's  description  of  what  may  be 
called  the  lay  portion  of  Celtic  society.  I  shall  after- 
wards call  your  attention  to  the  significance  of  what 
he  states  concerning  the  classes  whom  he  calls  the 
clients  and  debtors  of  the  Equites,  and  respecting 
the  increased  power  which  they  give  to  the  Chief  on 
whom  they  are  dependent.  It  is,  however,  remark- 
able that,  when  he  speaks  of  the  Druids,  his  state- 
ments are  greatly  more  detailed.  Here  there  were 
no  home  associations  to  mislead  him,  but,  beyond  that, 
it  is  plain  that  his  interest  was  strongly  roused  by  the 
novel  constitution  of  this  privileged  order  whom  he 
places  by  the  side  of  the  Chiefs.  Let  me  recall,  then,  to 
you  the  principal  points  of  his  description,  from  which  I 
designedly  omit  all  statements  concerning  the  priestly 
office  of  the  class  described.  He  tells  us  that  the 
Druids  wore  supreme  judges  in  all  public  and  private 
disputes ;  and  that,  for  instance,  all  questions  of 
homicide,  of  inheritance,  and  of  boundary  were  re- 
ferred to  them  for  decision.  He  says  that  the  Druids 
presided  over  schools  of  learning,  to  which  the  Celtic 
youth  flocked  eagerly  for  instruction,  remaining  in 
them  sometimes  (so  he  was  informed)  for  twenty 
years  at  a  time.  He  states  that  the  pupils  in  these 


32  THE   DRUIDS   AND   THE   BREHOXS.  LEOT.  n. 

schools  learned  an  enormous  quantity  of  verses,  which 
were  never  committed  to  writing ;  and  he  gives  his 
opinion  that  the  object  was  not  merely  to  prevent 
sacred  knowledge  from  being  popularised,  but  to 
strengthen  the  memory.  Besides  describing  to  us 
the  religious  doctrine  of  the  Druids,  he  informs  us 
that  they  were  extremely  fond  of  disputing  about 
the  nature  of  the  material  world,  the  movements  of 
the  stars,  and  the  dimensions  of  the  earth  and  of 
the  universe.  At  their  head  there  was  by  his  ac- 
count a  chief  Druid,  whose  place  at  his  death  was 
filled  by  election,  and  the  succession  occasionally 
gave  rise  to  violent  contests  of  arms  (B.  G.  vi. 
13,  14). 

There  are  some  strong  and  even  startling  points 
of  correspondence  between  the  functions  of  the 
Druids,  as  described  by  Caesar,  and  the  office  of  the 
Brehon,  as  suggested  by  the  law-tracts.  The  exten- 
sive literature  of  law  just  disinterred  testifies  to  the 
authority  of  the  Brehons  in  all  legal  matters,  and 
raises  a  strong  presumption  that  they  were  universal 
referees  in  disputes.  Among  their  writings  are 
separate  treatises  on  inheritance  and  boundary,  and 
almost  every  page  of  the  translations  contains  a 
reference  to  the  '  eric  '-fine  for  homicide.  The  schools 
of  literature  and  law  appear  to  have  been  numerous 
in  ancient  Ireland,  and  0' Curry  is  able  to  give  the 
course  of  instruction  in  one  of  them  extending  over 


LECT.  n.  IRISH   PREFACES  TO   TRACTS.  83 

twelve  years.  All  literature,  including  even  law, 
seems  to  have  been  identified  with  poetry.  The 
chief  Druid  of  Caesar  meets  us  on  the  very  threshold 
of  the  Senchus  Mor,  in  the  person  of  Dubhthach 
Mac  ua  Lugair,  the  royal  poet  of  Erin,  the  Brehon 
who  was  chosen  by  St.  Patrick  to  arbitrate  in  a 
question  of  homicide,  and  whose  l  mouth '  the  saint 
'  blessed.'  The  mode  of  choosing  the  chief  Druid, 
by  election,  has  its  counterpart  in  the  institution  of 
Tanistry,  which  within  historical  times  determined 
the  succession  to  all  high  office  in  Ireland,  and  which 
was  hateful  to  the  English,  as  affording  smaller 
security  for  order  than  their  own  less  archaic  form  ol 
primogeniture.  Nor  is  this  all.  The  Prefaces  in  Irish 
to  the  tracts  contain  a  number  of  discussions  on  subjects 
which  are  in  no  way  legal,  or  which  are  forced  into 
some  connection  with  law  by  the  most  violent  expe- 
dients. They  leave  on  the  mind  the  impression  of 
being  a  patchwork  of  materials,  probably  of  very 
various  antiquity,  which  happen  to  have  been  found 
in  the  archives  of  particular  law-schools.  Now,  the 
Preface  to  the  Senchus  Mor  actually  contains  dis- 
quisitions on  all  the  matters  about  which  Caesar 
declares  the  Druids  to  have  been  specially  fond  of 
arguing.  It  in  one  place  sets  forth  how  God  made 
the  heaven  and  the  earth,  but  the  account  is  not  the 
least  like  the  Mosaic  account.  It  goes  off,  as  CaRsar's 
Druids  did  into  a  number  of  extraordinary  statements, 


34  COSMOLOGY   OF   SENCHUS   MOR.  LECT.  n, 

lde  sideribus  atque  eorum  motuj  'de  mundiac  terrarum 
magnitudine?  Among  other  things,  it  declares  that 
God  fixed  seven  divisions  from  the  firmament  to  the 
earth,  and  that  the  distance  he  measured  from  the 
moon  to  the  sun  was  244  miles.  '  And  the  first  form 
of  the  firmament  was  ordained  thus  :  as  the  shell  is 
about  the  egg,  so  is  the  firmament  round  the  earth  in 
fixed  suspension  ....  there  are  six  windows  in 
each  part  through  the  firmament  to  shed  light 
through,  so  that  there  are  sixty-six  windows  in  it, 
and  a  glass  shutter  for  each  window;  so  that  the 
whole  firmament  is  a  mighty  sheet  of  crystal  and  a 
protecting  bulwark  round  the  earth,  with  three 
heavens,  and  three  heavens  about  it ;  and  the  seventh 
was  arranged  in  three  heavens.  This  last,  however, 
is  not  the  habitation  of  the  angels,  but  is  like  a  wheel 
revolving  round,  and  the  firmament  is  thus  revolving, 
and  also  the  seven  planets,  since  the  time  when  they 
were  created.'  Parts  of  the  passage  reflect  the 
astronomical  notions  known  to  have  been  current  in 
the  Middle  Ages,  but  much  of  it  reads  like  a  fragment 
of  a  heathen  cosmology,  to  which  a  later  revision  has 
given  a  faint  Christian  colouring.  The  same  Preface 
contains  also  some  curious  speculations  on  the  ety- 
mology of  law-terms,  and  the  Preface  to  the  Book  of 
Aicill  enters,  among  other  things,  into  the  question 
of  the  difference  between  genus  and  species. 

I  suggest,   therefore,  that   the   same   tendencies 


LECT.  n.  DRUIDS  AND   BREHONS.  3« 

•which  produced  among  the  Celts  of  the  Continent 
the  class  called  the  Druids  produced  among  the 
Celts  of  Ireland  the  class  known  to  us  as  the 
Brehons;  nor  does  it  seem  to  me  difficult  to  connect 
the  results  of  these  tendencies  with  other  known 
phenomena  of  ancient  society.  There  is  much  reason 
to  believe  that  the  Tribe-Chief,  or  King,  whom  the 
earliest  Aryan  records  show  us  standing  by  the  side 
of  the  Popular  Assembly,  was  priest  and  judge  as 
well  as  captain  of  the  host.  The  later  Aryan  history 
shows  us  this  blended  authority  distributing  or 
'  differentiating  *  itself,  and  passing  either  to  the 
Assembly  or  to  a  new  class  of  depositaries.  Among 
the  Achaean  s  of  Homer,  the  Chief  has  ceased  to  be 
priest,  but  he  is  still  judge;  and  his  judicial  sentences, 
0e/uoT€s,  or  '  dooms,'  however  much  they  may  be 
drawn  in  reality  from  pre-existing  usage,  are  believed 
to  be  dictated  to  him  from  on  high.  Among  the 
Celts  both  of  Gaul  and  of  Ireland  he  has  ceased  to  be 
priest,  and  also  probably  to  be  judge,  although  some 
measure  of  judicial  authority  may  still  belong  to  his 
office  as  a  '  survival.'  The  order  of  change  thus 
departs  from  that  followed  in  Athenian  history, 
where  the  institution  of  kingship  survived  only  in 
the  name  of  the  King  Archon,  who  was  a  judicial 
functionary,  and  from  that  followed  in  Roman 
history,  where  the  Rex  Sacrificulus  was  a  hierophant 
or  priest.  The  Popular  Assembly,  meanwhile,  which 

D  2 


86  THE  KIXG   AND   THE   BREHON.  LECT.  a, 

virtually  attracted  to  itself  the  whole  civil  and 
criminal  jurisdiction  of  the  Kings  among  the 
Athenians,  and  which  at  Rome  engrossed  the  whole 
administration  of  criminal  justice  through  the  com- 
missions it  appointed,  seems  to  lose  all  judicial 
authority  among  the  Celts.  Perhaps  I  may  be  per- 
mitted thus  to  describe  the  change  I  conceive  to 
have  taken  place  among  the  Celts  of  Ireland. 
Themis,  who  in  Homer  is  the  assessor  of  Zeus  and 
the  source  of  judicial  inspiration  to  kings,  has  (so 
to  speak)  set  up  for  herself.  Kings  have  delegated 
their  authority  to  a  merely  human  assessor,  and  we 
see  by  the  story  which  begins  the  Senchus  Mor  that, 
even  when  a  Saint  is  supposed  to  be  present,  the 
inspiration  of  which  he  is  the  source  does  not  find 
expression  through  his  lips,  nor  does  it  descend  on 
the  King ;  it  descends  on  the  professional  judge. 
When  we  obtain  our  last  glimpse  of  the  class  which 
has  received  this  inheritance  from  Chief  or  King — the 
Brehons,  Judges,  or  Authors  of  Judgments — they  have 
sunk  to  the  lowest  depth  of  misery  and  degradation 
through  the  English  conquest.  At  an  earlier  date 
they  are  seen  divided  into  families  or  septs,  the 
hereditary  law-advisers  of  some  princely  or  powerful 
house.  Hugh  McEgan,  who  wrote  the  note  'in  his 
own  father's  book,'  which  I  read  in  the  last  Lecture, 
was  one  of  the  hereditary  Brehons  attached  to  the 
McCarthys.  But,  in  the  earliest  Irish  traditions, 


LECT.  n.  THE   KING  AND   THE   BREHON.  37 

the  functions  of  the  Brehon  and  the  King  run  very 
much  into  one  another.  The  most  ancient  Brehons 
are  described  as  of  royal  blood,  sometimes  as  king's 
sons.  The  Tanaists  of  the  great  Irish  Chiefs,  the 
successors  elected  out  of  the  kindred  of  each  Chief  to 
come  after  him  on  his  death,  are  said  to  have  occa- 
sionally officiated  as  judges ;  and  one  of  the  law- 
tracts,  still  unpublished,  contains  the  express  rule 
that  it  is  lawful  for  a  king,  though  himself  a  judge, 
to  have  a  judge  in  his  place.  Cormac  MacAirt,  one 
of  the  traditional  authors  of  the  Book  of  Aicill,  was  a 
King  in  retirement.  Apocryphal  as  his  story  may  be, 
it  is  one  of  much  significance  to  the  student  of  ancient 
institutions.  He  had  been  accidentally  blinded  of 
one  eye,  and  is  said  to  have  been  deposed  from  his 
regal  office  or  chieftaincy  on  account  of  the  blemish. 
Coirpri,  his  son  and  successor  (says  the  Book  of 
Aicill),  'in  every  difficult  case  of  judgment  that  came 
to  him  used  to  go  and  ask  his  father  about  it,  and  his 
father  used  to  say  to  him,  "  My  son,  that  thou  mayest 
know  "  ' — and  then  proceeded  to  lay  down  the  law. 

If,  without  committing  ourselves  to  any  specific 
theory  concerning  the  exact  extent  of  the  correspond- 
ence, we  can  assume  that  there  was  substantial 
identity  between  the  literary  class  which  produced 
the  law-tracts  and  the  literary  order  attributed  to  the 
Celtic  races  by  Caesar,  we  not  only  do  something  to 
establish  an  historical  conclusion  perhaps  more  curious 


38  SUCCESSION  OP  BREHOIST  TO  DRUID.  LECT.  E. 

than  important,  but  we  remove  some  serious  difficul- 
ties in  the  interpretation  of  the  interesting  and  in- 
structive body  of  archaic  law  now  before  us.  The 
difference  between  the  Druids  and  their  successors, 
the  Brehons,  would  in  that  case  be  mainly  this  :  the 
Brehons  would  be  no  longer  priests.  All  sacerdotal 
or  religious  authority  must  have  passed,  on  the  con- 
version of  the  Irish  Celts,  to  the  '  tribes  of  the  saints  ' 
— to  the  missionary  monastic  societies  founded  at  all 
points  of  the  island — and  to  that  multitude  of  bishops 
dependent  on  them,  whom  it  is  so  difficult  to  recon- 
cile with  any  of  our  preconceived  ideas  as  to  ancient 
ecclesiastical  organisation.  The  consequence  would 
be  that  the  religious  sanctions  of  the  ancient  laws, 
the  supernatural  penalties  threatened  on  their  viola- 
tion, would  disappear,  except  so  far  as  the  legal  rules 
exactly  coincided  with  the  rules  of  the  new  Christian 
code,  the  ;  law  of  the  letter.'  Now,  the  want  of  a 
sanction  is  occasionally  one  of  the  greatest  difficulties 
in  understanding  the  Brehon  law.  Suppose  a  man 
disobeyed  the  rule  or  resisted  its  application,  what 
would  happen?  The  learned  writer  of  one  of  the 
modern  prefaces  prefixed  to  the  Third  Volume  of  the 
Ancient  Laws  contends  that  the  administration  of 
the  Brehon  system  consisted  in  references  to  arbitra- 
tion; and  I  certainly  think  myself  that,  so  far  as  the 
system  is  known,  it  points  to  that  conclusion.  The 
one  object  of  the  Brehons  was  to  force  disputants  to 


LECT.  n.  SANCTIONS   OF  BREHON  LAW.  89 

refer  their  quarrels  to  a  Brehon,  or  to  some  person  in 
authority  advised  by  a  Brehon,  and  thus  a  vast  deal 
of  the  law  tends  to  run  into  the  Law  of  Distress, 
which  declares  the  various  methods  by  which  a  man 
can  be  compelled  through  seizure  of  his  property  to 
consent  to  an  arbitration.  But  then  one  cannot  help 
perpetually  feeling  that  the  compulsion  is  weak  as 
compared  with  the  stringency  of  the  process  of 
modern  Courts  of  Justice;  and  besides  that,  why 
should  not  the  man  attempted  to  be  distrained  upon 
constantly  resist  with  success?  Doubtless  the  law 
provides  penalties  for  resistance;  but  where  is  the 
ultimate  sanction?  Caesar  supplies  an  answer,  which 
must,  I  think,  contain  a  portion  of  the  truth.  He 
says  that  if  a  Celt  of  Gaul  refused  to  abide  by  a 
Druid  judgment  he  was  excommunicated  :  which 
was  esteemed  the  heaviest  of  penalties.  Another 
example  which  I  can  give  you  of  the  want  or  weak- 
ness of  the  sanction  in  the  Brehon  law  is  a  very 
remarkable  one,  and  I  shall  recur  to  it  hereafter.  If 
you  have  a  legal  claim  against  a  man  of  a  certain  rank 
and  you  are  desirous  of  compelling  him  to  discharge 
it,  the  Senchus  Mor  tells  you  to  '  fast  upon  him.' 
1  Notice,'  it  says,  c  precedes  distress  in  the  case  of  the 
inferior  grades,  except  it  be  by  persons  of  distinction 
or  upon  persons  of  distinction;  fasting  precedes  dis- 
tress in  their  case'  ('Ancient  Laws  of  Ireland,'  vol.  i. 
p.  113).  The  institution  is  unquestionably  identical 


40  PASTING  AS   A  MODE   OF   COMPULSION.        LBCT.  n, 

with  one  widely  diffused  throughout  the  East,  which 
is  called  by  the  Hindoos  c  sitting  dharna.'  It  consists 
in  sitting  at  your  debtor's  door  and  starving  yourself 
till  he  pays.  From  the  English  point  of  view  the 
practice  has  always  been  considered  barbarous  and  im- 
moral, and  the  Indian  Penal  Code  expressly  forbids 
it.  It  suggests,  however,  the  question — what  would 
follow  if  the  creditor  simply  allowed  the  debtor  to 
starve?  Undoubtedly  the  Hindoo  supposes  that  some 
supernatural  penalty  would  follow;  indeed,  he  gene- 
rally gives  definiteness  to  it  by  retaining  a  Brahmin 
to  starve  himself  vicariously,  and  no  Hindoo  doubts 
what  would  come  of  causing  a  Brahmin's  death. 
"We  cannot  but  suppose  that  the  Brehon  rule  of  fast- 
ing was  once  thought  to  have  been  enforced  in  some 
similar  way.  Caesar  states  that  the  Druids  believed 
in  the  immortality  and  transmigration  of  the  soul, 
and  considered  it  the  key  of  their  system.  A  Druid 
may  thus  very  well  have  taught  that  penal  conse- 
quences in  another  world  would  follow  the  creditor's 
death  by  starvation ;  and  there  is  perhaps  a  pale  re- 
flection of  this  doctrine  in  the  language  of  the  Senchus 
Mor :  ;  He  who  does  not  give  a  pledge  to  fasting  is  an 
evader  of  all;  he  who  disregards  all  things  shall  not 
be  paid  by  God  or  man.'  But  an  Irish  Brehon  could 
scarcely  make  any  distinct  assertion  on  the  subject, 
since  fasting  had  now  become  a  specific  ordinance  of 
the  Christian  Church,  and  its  conditions  and  spiritual 


LECT.  n.  IRISH  AND  HINDOO  LAW.  41 

effects  were  expressly  defined  by  the  Christian  priest- 
hood. Theoretically,  I  should  state,  a  person  who 
refused  unjustly  to  yield  to  fasting  had  his  legal 
liabilities  considerably  increased,  at  least,  according 
to  the  dicta  of  the  Brehon  commentators;  but  such 
provisions  only  bring  us  to  the  difficulty  of  which  I 
first  spoke,  and  raise  anew  the  question  of  the  exact 
value  of  legal  rules  at  a  period  when  Courts  of  Jus- 
tice are  not  as  yet  armed  with  resistless  powers  of 
compelling  attendance  and  submission. 

If  we  are  justified  hi  tracing  the  pedigree  of  the 
Brehon  Code  to  a  system  enforced  by  supernatural 
sanctions,  we  are  able  to  contrast  it  in  various  ways 
with  other  bodies  of  law  in  respect  of  its  mode  of 
development.  It  closely  resembles  the  Hindoo  law, 
inasmuch  as  it  consists  of  what  was  in  all  probability 
an  original  basis  of  Aryan  usage  vastly  enlarged  by 
a  superstructure  of  interpretation  which  a  long  suc- 
cession of  professional  commentators  have  erected ; 
but  it  cannot  have  had  any  such  sacredness,  and  con- 
sequently any  such  authority,  as  the  Brahminical 
jurisprudence.  Both  the  Brahmins  and  the  Brehons 
assume  that  Kings  and  Judges  will  enforce  their  law, 
and  emphatically  enjoin  on  them  its  enforcement ; 
but,  while  the  Brahmin  could  declare  that  neglect  or 
disobedience  would  be  followed  by  endless  degrada- 
tion and  torment,  the  Brehon  could  only  assert  that 
the  unlearned  brother  who  pronounced  a  false  judg- 


42  IRISH   AND   EARLY  ROMAN  LAW.  LBCT.  tt, 

ment  would  find  blotches  come  on  his  cheeks,  and 
that  the  Chief  who  allowed  sound  usage  to  be  de- 
parted from  would  bring  bad  weather  on  his  country. 
The  development  of  the  Brehon  law  was  again  parallel 
*  to  that,  wiale  .there  is  strong  reason  for  supposing  the 
Roman  law  to  have  followed  in  early  times.      The 
writer  of  the  Preface  to  the  Third  Volume,  from  which 
I  have  more  than  once  quoted,  cites  some  observations 
which  I  published  several  years  ago  on  the  subject 
of  the  extension  of  the  Roman  jurisprudence  by  the 
agency  known  as  the  Responsa  Prudentum,  the  ac- 
cumulated answers    (or,  as   the   Brehon   phrase   is, 
the  judgments)    of  many   successive   generations  of 
famous  Roman  lawyers ;  and  he  adopts  my  account 
as  giving  the  most  probable  explanation  of  the  growth 
of  the  Brehon  law.     But  in  the  Roman  State  a  test 
was  always  applied  to  the  4  answers  of  the  learned,' 
which  was  not  applied,  or  not  systematically  applied, 
to  the  judgments  of  the  Brehons.     We  never  know 
the  Romans  except  as  subject  to  one  of  the  strongest 
of  central  governments,  which  armed  the  law  courts 
with  the  force  at  its  command.    Although  the  Roman 
system  did  not  work  exactly  in  the  way  to  which  our 
English  experience  has  accustomed  us,  there  can,  of 
course,  be  no  doubt  that  the  ultimate  criterion  of  the 
validity  of  professional  legal  opinion  at  Rome,  as  else- 
where, was  the  action  of  Courts  of  Justice  enforcing 
rights  and  duties  in  conformity  with  such  opinion. 


LECT.  n.  IRISH   AND   ENGLISH   LAW.  43 

But  in  ancient  Ireland  it  is  at  least  doubtful  whether 
there  was  ever,  in  our  sense  of  the  words,  a  central 
government ;  it  is  also  doubtful  whether  the  public 
force  at  the  command  of  any  ruler  or  rulers  was  ever 
systematically  exerted  through  the  mechanism  of 
Courts  of  Justice ;  and  it  is  at  least  a  tenable  view 
that  the  institutions  which  stood  in  the  place  of 
Courts  of  Justice  only  exercised  jurisdiction  through 
the  voluntary  submission  of  intending  litigants. 

Perhaps,  however,  from  our  present  point  of  view, 
the  strongest  contrast  is  between  the  ancient  law  of 
Ireland  and  the  law  of  England  at  a  period  which  an 
English  lawyer  would  not  call  recent.  The  adminis- 
tration of  justice  in  England,  from  comparatively  early 
times,  has  been  more  strongly  centralised  than  in  any 
other  European  country ;  but  in  Ireland  there  was  no 
central  government  to  nerve  the  arm  of  the  law.  The 
process  of  the  English  Courts  has  for  centuries  past 
been  practically  irresistible ;  the  process  of  the  Irish 
Courts,  even  if  it  was  compulsory,  was  at  the  utmost 
extremely  weak.  The  Irish  law  was  developed  by 
hereditary  commentators ;  but  we  in  England  have 
always  attributed  far  less  authority  than  does  any 
European  Continental  community  to  the  unofficial 
commentaries  of  the  most  learned  writers  of  text- 
books. We  obtain  our  law,  and  adjust  it  to  the 
needs  of  each  successive  generation,  either  through 
legislative  enactment  or  through  the  decisions  of  our 


44     LAW  DECLARED  THROUGH  HYPOTHETICAL  CASES.   LECX.  n. 

judges  on  isolated  groups  of  facts  established  by  the 
most  laborious  methods.  But,  as  I  have  already 
stated,  the  opinion  to  which  I  incline  is,  that  no  part 
of  the  Brehon  law  had  its  origin  in  legislation.  The 
author  of  innovation  and  improvement  was  the  learned 
Brehon,  and  the  Brehon  appears  to  have  invented  at 
pleasure  the  facts  which  he  used  as  the  framework 
for  his  legal  doctrine.  His  invention  was  necessarily 
limited  by  his  experience,  and  hence  the  cases  sug- 
gested in  the  law-tracts  possess  great  interest,  as 
throwing  light  on  the  society  amid  which  they  were 
composed ;  but  these  cases  seem  to  be  purely  hypo- 
thetical, and  only  intended  to  illustrate  the  rule 
which  happens  to  be  under  discussion. 

In  the  volume  of  my  own  to  which  I  referred  a 
few  moments  ago  I  said  of  the  early  Roman  law  that 
'great  influence  must  have  been  exercised  (over  it) 
by  the  want  of  any  distinct  check  on  the  suggestion 
or  invention  of  possible  questions.  When  the  data 
can  be  multiplied  at  pleasure,  the  facilities  for  evolv- 
ing a  general  rule  are  immensely  increased.  As  the 
law  is  administered  among  ourselves  (in  England) 
the  judge  cannot  travel  out  of  the  sets  of  facts  ex- 
hibited before  him  or  before  his  predecessors.  Ac- 
cordingly, each  group  of  circumstances  which  is 
adjudicated  upon  receives,  to  employ  a  Gallicism, 
a  sort  of  consecration.  It  acquires  certain  qualities 
which  distinguish  it  from  every  other  case,  genuine 


I.KCT.  ii.          CHARACTERISTICS    OF   BREHON   LAW.  46 

or  hypothetical.'     I  do  not  think  it  can  be  doubted 
that  this  English  practice  of  never  declaring  a  legal 
rule  authoritatively  until  a  state  of  facts  arises  to 
which  it  can  be  fitted,  is  the  secret  of  the  apparent 
backwardness  and  barrenness  of  English  law  at  par- 
ticular epochs,  as  contrasted  with  the  richness  and 
reasonableness  of  other  systems  which  it  more  than 
rivals  in  its  present  condition.     It  is  true,  as  I  said 
before,  even  of  the  Brehon  law,  that   it   does  not 
wholly  disappoint   the  patriotic  expectations  enter- 
tained of    it.      When   they   are   disencumbered   of 
archaic  phrase  and  form,  there  are  some  things  re- 
markably modern  in  it.     I  quite  agree  with  one  of 
the  Editors  that,  in  the  ancient  Irish  Law  of  Civil 
Wrong,  there  is  a  singularly  close  approach  to  mo- 
dern doctrines  on  the  subject  of  Contributory  Negli- 
gence; and  I  have  found  it  possible  to  extract  from 
the  quaint  texts  of  the  Book  of  Aicill  some  extremely 
sensible  rulings  on  the  difficult  subject  of  the  Mea- 
sure of  Damages,  for  which  it  would  be  vain  to  study 
the  writings  of  Lord  Coke,  though  these  last  are 
relatively  of  much  later  date.     But  the  Brehon  law 
pfiys  heavily  for   this   apparent  anticipation  of  the 
modern  legal  spirit.     It  must  be  confessed  that  most 
of  it  has  a  strong  air  of  fancifulness  and  unreality. 
It  seems  as  if  the  Brehon  lawyer,  after  forming  (let 
ns  say)  a  conception  of  a  particular  kind  of  injury, 
set  himself,  as  a  sort  of  mental  exercise,  to  devise  all 


46  CHARACTERISTICS   OP  BREHON  LAW.          user,  n, 

the  varieties  of  circumstance  under  which  the  wrong 
could  be  committed,  and  then  to  determine  the  way 
in  which  some  traditional  principle  of  redress  could 
be  applied  to  the  cases  supposed.  This  indulgence 
of  his  imagination  drew  him  frequently  into  triviality 
or  silliness,  and  led  to  an  extraordinary  multiplica- 
tion of  legal  detail.  Four  pages  of  the  Book  of  Aicill 
(a  very  large  proportion  of  an  ancient  body  of  law) 
are  concerned  with  injuries  received  from  dogs  in 
dog- fights,  and  they  set  forth  in  the  most  elaborate 
way  the  modification  of  the  governing  rule  required 
in  the  case  of  the  owners — in  the  case  of  the  specta- 
tors— in  the  case  of  the { impartial  interposer ' — in  the 
case  of  the  '  half- interposer,'  i.e.  the  man  who  tries 
to  separate  the  dogs  with  a  bias  in  favour  of  one  of 
them — in  the  case  of  an  accidental  looker-on — in  the 
case  of  a  youth  under  age,  and  in  the  case  of  an  idiot. 
The  same  law-tract  deals  also  with  the  curious  sub- 
jects of  injuries  from  a  cat  stealing  in  a  kitchen,  from 
women  using  their  distaffs  in  a  woman-battle,  and 
from  bees,  a  distinction  being  drawn  between  the 
case  in  which  the  sting  draws  blood  and  the  case  in 
which  it  does  not.  Numberless  other  instances  could 
be  given  ;  but  I  repeat  that  all  this  is  mixed  up  with 
much  that  even  now  has  juridical  interest,  and  with 
much  which  in  that  state  of  society  had  probably  the 
greatest  practical  importance. 

It  is  not,  perhaps,  as  often  noticed  as  it  should  be 


LECT.  n.  EXGLISH   CASE-LAW.  47 

by  English  writers  on  law  that  the  method  of  enuncia- 
ting legal  principles  with  which  our  Courts  of  Justice 
have  familiarised  us  is  absolutely  peculiar  to  England 
and  to  communities  under  the  direct  influence  of 
English  practice.  In  all  Western  societies,  Legislation, 
which  is  the  direct  issue  of  the  commands  of  the 
sovereign  state,  tends  more  and  more  to  become  the 

O  ' 

exclusive  source  of  law ;  but  still  in  all  Continental 
countries  other  authorities  of  various  kinds  are  occa- 
sionally referred  to,  among  which  are  the  texts  of  the 
Roman  Corpus  Juris,  commentaries  on  Codes  and 
other  bodies  of  written  law,  the  unofficial  writings  of 
famous  lawyers,  and  other  branches  of  the  vast  litera- 
ture of  law  holding  at  most  a  secondary  place  in  the 
estimation  of  the  English  Judges  and  Bar.  Nowhere, 
however,  is  anything  like  the  same  dignity  as  with  us 
attributed  to  a  decided  *  case,'  and  I  have  found  it 
difficult  to  make  foreign  lawyers  understand  why 
their  English  brethren  should  bow  so  implicitly  to 
what  Frenchmen  term  the  'jurisprudence'  of  a  par- 
ticular tribunal.  From  one  point  of  view  English 
law  has  doubtless  suffered  through  this  reluctance  to 
invent  or  imagine  facts  as  the  groundwork  of  rules, 
and  it  will  continue  to  bear  the  marks  of  the  injury 
until  legislative  re-arrangement  and  re-statement  fully 
disclose  the  stores  of  common  sense  which  are  at  pre- 
sent concealed  by  its  defects  of  language  and  form. 
On  the  other  hand,  these  habits  of  the  English  Courts 


48  QUESTIONS   OF   FACT.  LECT.  n, 

seem  to  be  closely  connected  with  one  of  the  most 
honourable  characteristics  of  the  English  system,  its 
extreme  carefulness  about  facts.  Nowhere  else  in  the 
world  is  there  the  same  respect  for  a  fact,  unless  the 
respect  be  of  English  origin.  The  feeling  is  not  shared 
by  our  European  contemporaries,  and  was  not  shared 
by  our  remote  ancestors.  It  has  been  said — and  the 
remark  seems  to  me  a  very  just  one — that  in  early 
times  questions  of  fact  are  regarded  as  the  simplest  of 
all  questions.  Such  tests  of  truth  as  Ordeal  and  Com- 
purgation  satisfy  men's  minds  completely  and  easily, 
and  the  only  difficulty  recognised  is  the  discovery  of 
the  legal  tradition  and  its  application  to  the  results  of 
the  test.  Up  to  a  certain  point  no  doubt  our  own 
mechanism  for  the  determination  of  a  fact  is  also  a 
mere  artifice.  We  take  as  our  criterion  of  truth  the 
unanimous  opinion  of  twelve  men  on  statements  made 
before  them.  But  then  the  mode  of  convincing,  or 
attempting  to  convince,  them  is  exactly  that  which 
would  have  to  be  followed  if  it  were  sought  to  obtain 
a  decision  upon  evidence  from  the  very  highest  human 
intelligence.  The  old  procedure  was  sometimes  wholly 
senseless,  sometimes  only  distantly  rational  ;  the 
modern  English  procedure  is  at  most  imperfect,  and 
some  of  its  imperfection  arises  from  the  very  consti- 
tution of  human  nature  and  human  society.  I  quite 
concur,  therefore,  in  the  ordinary  professional  opinion 
that  its  view  of  facts  and  its  modes  of  ascertaining 


LECT.  IT.  FACT  AND   LAW.  49 

them  are  the  great  glory  of  English  law.  I  am  afraid, 
however,  that  facts  must  always  be  the  despair  of  the 
law  reformer.  Bcntham  seems  to  me  from  several 
expressions  to  have  supposed  that  if  the  English  Law 
of  Evidence  were  re- constructed  on  his  principles 
questions  of  fact  would  cease  to  present  any  serious 
difficulty.  Almost  every  one  of  his  suggestions  has 
been  adopted  by  the  Legislature,  and  yet  enquiries 
into  facts  become  more  protracted  and  complex  than 
ever.  The  truth  is  that  the  facts  of  human  nature, 
with  which  Courts  of  Justice  have  chiefly  to  deal, 
are  far  obscurer  and  more  intricately  involved  than 
the  facts  of  physical  nature ;  and  the  difficulty  of 
ascertaining  them  with  precision  constantly  increases 
in  our  age,  through  the  progress  of  invention  and 
enterprise,  through  the  ever-growing  miscellaneous- 
ness  of  all  modern  communities,  and  through  the  ever- 
quickening  play  of  modern  social  movements.  Pos- 
sibly we  may  see  English  law  take  the  form  which 
Bentham  hoped  for  and  laboured  for  ;  every  succes- 
sive year  brings  us  in  some  slight  degree  nearer  to 
this  achievement ;  and  consequently,  little  as  we  may 
agree  in  his  opinion  that  all  questions  of  law  are  the 
effect  of  some  judicial  delusion  or  legal  abuse,  we 
may  reasonably  expect  them  to  become  less  fre- 
quent and  easier  of  solution.  But  neither  facts  nor 
the  modes  of  ascertaining  them  tend  in  the  least  to 

£ 


60  ANCIENT   IRISH   CUSTOMARY  LAW.  LECX.  n. 

simplify  themselves,  and  in  no  conceivable  state  of 
society  will  Courts  of  Justice  enjoy  perpetual 
vacation. 

I  have  been  at  some  pains  to  explain  what  sort  of 
authority  the  Irish  Brehon  law  did  not,  in  my  opinion, 
possess.  The  '  law  of  nature '  had  lost  all  supernatural 
sanction,  except  so  far  as  it  coincided  with  the  '  law 
of  the  letter.'  It  had  not  yet  acquired,  or  had  very 
imperfectly  acquired,  that  binding  power  which  law 
obtains  when  the  State  exerts  the  public  force  through 
Courts  of  Justice  to  compel  obedience  to  it.  Had  it, 
then,  any  authority  at  all ;  and  if  so,  what  sort  of 
authority  ?  Part  of  the  answer  to  this  question  I  en- 
deavoured to  give  three  years  ago  ('Village  Commu- 
nities, in  the  East  and  West,'  pp.  56,  57);  and  though 
much  more  might  be  said  on  the  subject,  I  defer  it 
till  another  opportunity.  So  far  as  the  Brehon  law 
declared  actual  ancient  and  indigenous  practices, 
it  shared  in  the  obstinate  vitality  of  all  customs  when 
observed  by  a  society  distributed  into  corporate  natu- 
ral groups.  But,  besides  this,  it  had  another  source 
of  influence  over  men's  minds,  in  the  bold  and  never- 
flagging  self-assertion  of  the  class  which  expounded 
it.  A  portion  of  the  authority  enjoyed  by  the  Indian 
Brahminical  jurisprudence  is  undoubtedly  to  be  ex- 
plained in  the  same  way.  The  Brehon  could  not. 
like  the  Brahmin,  make  any  such  portentous  assertion 
as  that  his  order  sprang  from  the  head  of  Brahma, 


LECT.  n.  SELF-ASSERTION   OF  BREHONS.  M 

that  it  was  an  embodiment  of  perfect  purity,  and  that 
the  first  teacher  of  its  lore  was  a  direct  emanation 
from  God.  But  the  Brehon  did  claim  that  St.  Pat- 
rick and  other  great  Irish  saints  had  sanctioned  the 
law  which  he  declared,  and  that  some  of  them  had 
even  revised  it.  Like  the  Brahmin,  too,  he  never 
threw  away  an  opportunity  of  affirming  the  dignity  of 
his  profession.  In  these  law-tracts  the  heads  of  this 
profession  are  uniformly  placed,  where  Ca3sar  placed 
the  Druids,  on  the  same  level  with  the  highest  classes 
of  Celtic  society.  The  fines  payable  for  injury  to 
them,  and  their  rights  of  feasting  at  the  expense  of 
other  classes  (a  form  of  right  which  will  demand  much 
attention  from  us  hereafter),  are  adjusted  to  those  of 
Bishops  and  Kings.  It  is  more  than  likely  that  the 
believing  multitude  ended  by  accepting  these  preten- 
sions. From  what  we  know  of  that  stage  of  thought 
we  can  hardly  set  limits  to  the  amount  of  authority 
spontaneously  conceded  to  the  utterances  of  a  sole 
literary  class.  It  must  have  struck  many  that  the 
influence  of  the  corresponding  class  in  our  own  modern 
society  far  exceeds  anything  which  could  have  been 
asserted  of  it  from  the  mere  consideration  of  our 
social  mechanism.  There  is,  perhaps,  an  impression 
abroad  that  the  influence  it  exerts  increases  as  history 
goes  on,  an  impression  possibly  produced  and  certainly 
strengthened  by  the  brilliant  passages  in  which  Lord 

•  2 


62  THE  LITERARY  CLASS.  LEW.  n. 

Macaulay  contrasted  the  well-paid  literary  labour  of 
his  own  day  with  the  miseries  of  the  literary  hack  of 
Grub  Street  a  century  before.  I  think  that  this 
opinion,  if  broadly  stated,  is  at  the  very  least  doubt- 
ful. The  class  which,  to  use  a  modern  neologism, 
'  formulates '  the  ideas  dimly  conceived  by  the  multi- 
tude— which  saves  it  mental  trouble  by  collecting 
through  generalisation,  which  is  an  essentially  labour- 
saving  process,  the  scattered  fragments  of  its  know- 
ledge and  experience — has  not  always  consisted  of 
philosophers,  historians,  and  novelists,  but  had  earlier 
representatives  in  poets,  priests,  and  lawyers.  It  is 
not  at  all  a  paradoxical  opinion  that  these  last  were 
its  most  powerful  members.  For,  nowadays,  it  has 
to  cope  with  the  critical  faculty,  more  or  less  found 
everywhere,  and  enormously  strengthened  by  observa- 
tion of  the  methods  of  physical  discovery.  No  autho- 
rity of  our  day  is  possibly  comparable  with  that  of 
the  men  who,  in  an  utterly  uncritical  age,  simply  said 
of  a  legal  rule,  '  So  it  has  been  laid  down  by  the 
learned,'  or  used  the  still  more  impressive  formula, 
*  It  is  thus  written.' 

While,  however,  I  fully  believe  that  the  Brehon 
law  possessed  great  authority,  I  think  also  that  it 
was  in  all  probability  irregularly  and  intermittently 
enforced,  and  that  partial  and  local  departures  from 
it  were  common  all  over  ancient  Ireland.  Anybody 
who  interested  himself  in  the  question  of  its  piactical 


LECT.  n.  CASE   OP  THE   O'NEILLS.  53 

application  would  have  to  encounter  the  very  pro- 
blems which  are  suggested  by  the  Brahminical  Hin- 
doo law.  The  student  of  this  last  system,  especially  if 
he  compares  it  with  the  infinity  of  local  usage  prac- 
tised in  India,  is  constantly  asking  himself  how  far 
was  the  law  of  the  Brahmin  jurists  observed  before 
the  English  undertook  to  enforce  it  through  their 
tribunals?  The  Editor  of  the  Third  Volume  of  the 
Ancient  Laws  of  Ireland  has  given  a  very  apposite 
example  of  a  problem  of  the  same  kind  (iii.  146),  by 
extracting  from  the  Carew  Papers  the  story  of  a 
famous  dispute  as  to  the  headship  of  the  great  Irish 
house  of  O'Neill.  Con  O'Neill,  its  chief,  had  two  sons, 
Matthew  and  Shane.  Matthew  O'Neill  was  heir  to  Con 
O'Neill's  earldom  of  Tyrone,  according  to  the  limita- 
tions of  the  patent.  Shane  O'Neill  urged  on  the 
English  Government  that  these  limitations  were  void, 
because  the  King,  in  granting  the  earldom,  could  not 
have  been  aware  that  Matthew  O'Neill  was  an  adul- 
terine bastard,  having  been  in  truth  born  of  the  wife 
of  a  smith  in  Dundalk.  Shane  O'Neill  has  been 
regarded  as  the  champion  of  purely  Irish  ideas  (see 
Froude,  '  English  in  Ireland,'  I.  43);  but  though  the 
rule  of  legitimacy  upon  which  he  insisted  conforms 
to  our  notions,  it  is  directly  contrary  to  the  legal 
doctrine  of  the  Book  of  Aicill,  which  in  one  of  its 
most  surprising  passages  lays  down  formally  the  pro- 
cedure by  which  the  natural  father  could  bring  into 


64  THE   ANGLO-NORMAL  SETTLEMENT.  LBCT.  n. 

his  family  a  son  born  under  the  alleged  circumstances 
of  Matthew  O'Neill,  on  paying  compensation  to  the 
putative  parent.  Unless  Shane  O'Neill's  apparent 
ignorance  of  this  method  of  legitimation  was  merely 
affected  for  the  purpose  of  blinding  the  English 
Government,  it  would  seem  to  follow  that  the  Book 
of  Aicill,  though  its  authorship  was  attributed  to 
King  Cormac,  had  not  an  universally  recognised 
authority. 

I  do  not  know  that  the  omission  of  the  English, 
when  they  had  once  thoroughly  conquered  the  country, 
to  enforce  the  Brehon  law  through  the  Courts  which 
they  established,  has  ever  been  reckoned  among  the 
wrongs  of  Ireland.  But  if  they  had  done  this,  they 
would  have  effected  the  very  change  which  at  a 
much  later  period  they  brought  about  in  India,  igno- 
rantly,  but  with  the  very  best  intentions.  They 
would  have  given  immensely  greater  force  and  a 
much  larger  sphere  to  a  system  of  rules  loosely  and 
occasionally  administered  before  they  armed  them 
with  a  new  authority.  Even  as  it  was,  I  cannot 
doubt  that  the  English  did  much  to  perpetuate  the 
Brehon  law  in  the  shape  in  which  we  find  it.  The 
Anglo-Norman  settlement  on  the  east  coast  of  Ireland 
acted  like  a  running  sore,  constantly  irritating  the 
Celtic  regions  beyond  the  Pale,  and  deepening  the 
confusion  which  prevailed  there.  If  the  country  had 
been  left  to  itself,  one  of  the  great  Irish  tribes  would 


.  n.        CHRISTIAN  MORALITY  AND   ROMAN  LAW.  65 

almost  certainly  have  conquered  the  rest.  All  the 
legal  ideas  which,  little  conscious  as  we  are  of  their 
source,  come  to  us  from  the  existence  of  a  strong 
central  government  lending  its  vigour  to  the  arm  of 
justice  would  have  made  their  way  into  the  Brehon 
law ;  and  the  gap  between  the  alleged  civilisation  of 
England  and  the  alleged  barbarism  of  Ireland  during 
much  of  their  history,  which  was  in  reality  narrower 
than  is  commonly  supposed,  would  have  almost  wholly 
disappeared. 

Before  I  close  this  chapter  it  is  necessary  to 
state  that  the  Brehon  law  has  not  been  unaffected  by 
the  two  main  influences  which  have  made  the  modern 
law  of  Western  Europe  different  from  the  ancient, 
Christian  morality  and  Roman  jurisprudence.  It  has 
been  modified  by  Roman  juridical  ideas  in  some  de- 
gree, though  it  would  be  hazardous  to  lay  down  with 
any  attempt  at  precision  in  what  degree.  I  have  trust- 
worthy information  that,  in  the  tracts  translated  but 
not  yet  published,  a  certain  number  of  Roman  legal 
maxims  are  cited,  and  one  Roman  jurisconsult  is  men- 
tioned by  name.  So  far  as  the  published  tracts  afford 
materials  for  an  opinion,  I  am  inclined  to  think  that 
the  influence  of  the  Roman  law  has  been  very  slight, 
arid  to  attribute  it  not  to  study  of  the  writings  of  the 
Roman  lawyers,  but  to  contact  with  Churchmen  im- 
bued more  or  less  with  Roman  legal  notions.  We 
may  be  quite  sure  that  the  Brehons  were  indebted 


66  WILLS  AND   CONTRACTS.  LECT.  a 

to  them  for  one  conception  which  is  present  in  the 
tracts — the  conception  of  a  Will;  and  we  may  pro- 
bably credit  the  Church  with  the  comparatively  ad- 
vanced development  of  another  conception  which  we 
find  here — the  conception  of  a  Contract.  The  origin 
of  the  rules  concerning  testamentary  bequest  which 
are  sometimes  found  in  Western  bodies  of  law  other- 
wise archaic  has  been  much  considered  of  late  years; 
and  the  weight  of  learned  opinion  inclines  strongly 
to  the  view  that  these  rules  had  universally  their 
source  in  Roman  law,  but  were  diffused  by  the  in- 
fluence of  the  Christian  clergy.  This  assertion 
cannot  be  quite  so  confidently  made  of  Contracts ; 
but  the  sacredness  of  bequests  and  the  sacredness  of 
promises  were  of  about  equal  importance  *  to  the 
Church,  as  the  donee  of  pious  gifts ;  and,  as  regards 
the  Brehon  law,  it  is  plain  upon  the  face  of  the  pub- 
lished sub-tract  which  is  chiefly  concerned  with  Con- 
tract, the  Corus  Bescna,  that  the  material  interests  of 
the  Church  furnished  one  principal  motive  for  its 
compilation.  The  Corus  Bescna,  in  which,  I  may 
observe,  a  certain  confusion  (not  uncommon  in  ancient 
law)  may  be  remarked  between  contracts  and  granu>, 
between  the  promise  to  give  and  the  act  or  operation 
of  giving,  contains  some  very  remarkable  propositions 
on  the  subject  of  Contract.  Here,  and  in  other  parts 
of  the  Senchus  Mor,  the  mischiefs  of  breach  of  con- 
tract are  set  forth  in  the  strongest  language.  *  The 


LECT.  n.  COXTKACT   IX   ANCIENT   IRISH  LAW.  67 

world  would  be  in  a  state  of  confusion  if  verbal  con- 
tracts were  not  binding.'  4  There  are  three  periods 
at  which  the  world  dies :  the  period  of  a  plague,  of  a 
general  war,  of  the  dissolution  of  verbal  contracts.' 
'  The  world  is  worthless  at  the  time  of  the  dissolution 
of  contracts.'  At  first  sight  this  looks  a  good  deal 
liker  the  doctrine  of  the  eighteenth  century  than  of 
any  century  between  the  sixth  and  the  sixteenth. 
Let  us  see,  however,  what  follows  when  the  position 
thus  broadly  stated  has  to  be  worked  out.  We  come, 
in  the  Corns  Bescna.  upon  the  following  attempt  at 
classification,  which  I  fear  would  have  deeply  shocked 
Jeremy  Bentham  and  John  Austin :  *  How  many 
kinds  of  contracts  are  there?'  asks  the  Brehon  text- 
writer.  '  Two,'  is  the  answer.  l  A  valid  contract, 
and  an  invalid  contract.'  This,  no  doubt,  is  absurd, 
but  the  explanation  appears  to  be  as  follows.  The 
principle  of  the  absolute  sacredness  of  contracts  was 
probably  of  foreign  origin,  and  was  insisted  upon  for 
a  particular  purpose.  It  was  therefore  laid  down  too 
broadly  for  the  actual  state  of  the  law  and  the  actual 
condition  of  Irish  Celtic  society.  Under  such  cir- 
cumstances a  treatise  on  Contract  takes  necessarily 
the  form  in  great  measure  of  a  treatise  on  the  grounds 
of  invalidity  in  contracts,  on  the  manifold  exceptions 
to  an  over-broad  general  rule.  Anciently,  the  power 
of  contracting  is  limited  on  all  sides.  .  It  is  limited 
by  the  rights  of  your  family,  by  the  rights  of  your 


68  CHRISTIANITY  AND   THE  BREHON   LAW.        LECT.  11 

distant  kinsmen,  by  the  rights  of  your  co-villagers, 
by  the  rights  of  your  tribe,  by  the  rights  of  your 
Chief,  and,  if  you  contract  adversely  to  the  Church, 
by  the  rights  of  the  Church.  The  Corus  Bescna  is 
in  great  part  a  treatise  on  these  archaic  limitations. 
At  the  same  time  some  of  the  modern  grounds  of 
invalidity  are  very  well  set  forth,  and  the  merit  may 
possibly  be  due  to  the  penetration  of  Roman  doctrine 
into  the  Brehon  law-schools. 

Something  must  be  said  on  the  extent  to  which 
Christian  opinion  has  leavened  these  Brehon  writings. 
Christianity  has  certainly  had  considerable  negative 
influence  over  them.  It  became  no  longer  possible  for 
the  Brehon  to  assert  that  the  transgressor  of  his  rules 
would  incur  a  supernatural  penalty,  and  the  conse- 
quences of  this  were  no  doubt  important.  But  still,  as 
you  have  seen,  in  the  case  of  '  fasting  on  a  man/  or  '  sit- 
ting dharnaj  the  heathen  rule  remained  in  the  system, 
though  its  significance  was  lost.  Again,  one  positive 
result  of  the  reception  by  the  Brehons  of  the  so-called 
'  law  of  the  letter  '  appears  to  have  been  the  develop- 
ment of  a  great  mass  of  rules  relating  to  the  territorial 
rights  of  the  Church,  and  these  constitute  a  very 
interesting  department  of  the  Brehon  law.  But  there 
has  certainly  been  nothing  like  an  intimate  inter- 
penetration  of  ancient  Irish  law  by  Christian  prin- 
ciple. If  this  kind  of  influence  is  to  be  looked  for 
anywhere,  it  must  be  in  the  law  of  Marriage,  and  the 


LECT.  0.  RELATIONS   OF   THE   SEXES.  69 

cognate  branches  of  Divorce,  Legitimacy,  and  Inher- 
itance. These,  however,  are  the  very  portions  of  the 
Brehon  law  which  have  been  dwelt  upon  by  writers 
convinced  that,  as  regards  the  relations  of  the  sexes, 
the  primitive  Irish  were  near  akin  to  those  Celts 
of  Britain  of  whose  practices  Caesar  had  heard. 
(B.  G.  v.  14.)  The  'Book  of  AicilT  provides  for  the 
legitimation  not  only  of  the  bastard,  but  of  the  adul- 
terine bastard,  and  measures  the  compensation  to  be 
paid  to  the  putative  father.  The  tract  on  *  Social 
Connections '  appears  to  assume  that  the  temporary 
cohabitation  of  the  sexes  is  part  of  the  accustomed 
order  of  society,  and  on  this  assumption  it  minutely 
regulates  the  mutual  rights  of  the  parties,  showing 
an  especial  care  for  the  interests  of  the  woman,  even 
to  the  extent  of  reserving  to  her  the  value  of  her 
domestic  services  during  her  residence  in  the  common 
dwelling.  One  remark  ought,  however,  to  be  made 
on  these  provisions  of  the  Brehon  law.  It  is  not  in- 
conceivable that,  surprising  as  they  are,  they  may  be 
the  index  to  a  social  advance.  Caesar  plainly  found 
the  Celts  of  the  Continent  polygamous,  living  in 
families  held  together  by  stringent  Paternal  Power. 
He,  a  Roman,  familiar  with  a  Patria  Potestas  as  yet 
undecayed,  thinks  it  worthy  of  remark  that  the  head 
of  a  Gallic  household  had  the  power  of  life  and  death 
over  his  wives  as  well  as  his  children,  and  notices  with 
astonishment  that,  when  a  husband  died  under  BUS- 


60  MARRIAGE   IN  ANCIENT  IRELAND.  IECT.  n. 

picious  circumstances,  his  wives  were  treated  with  the 
same  cruelty  as  a  body  of  household  slaves  at  Rome 
whose  master  had  been  killed  by  an  unknown  hand. 
(B.  G.,  vi.  19.)  Now,  though  very  much  cannot  be 
confidently  said  about  the  transition  (which,  never- 
theless, is  an  undoubted  fact)  of  many  societies  from 
polygamy  to  monogamy  under  influences  other  than 
those  of  religion,  it  may  plausibly  be  conjectured  that 
here  and  there  it  had  its  cause  in  liberty  of  divorce. 
The  system  which  permitted  a  plurality  of  wives  may 
have  passed  into  the  system  which  forbade  more  than 
one  wife  at  a  time,  but  which  did  not  go  farther.  The 
monogamy  of  the  modern  and  Western  world  is,  in 
fact,  the  monogamy  of  the  Romans,  from  which  the 
license  of  divorce  has  been  expelled  by  Christian  mo- 
rality. There  are  hardly  any  materials  for  an  opinion 
upon  the  degree  of  influence  exercised  by  the  Church 
over  the  transformation  of  marriage-relations  in  Ire- 
land, but  there  are  several  indications  that  the  ecclesi- 
astical rules  as  to  the  conditions  of  a  valid  marriage 
established  themselves  very  slowly  among  the  ruder 
races  on  the  outskirts  of  what  had  been  the  Roman 
Empire.  Mr.  Burton  ('  History  of  Scotland/  ii.  213),  in 
speaking  of  the  number  of  illegitimate  claimants  who 
brought  their  pretensions  to  the  Crown  of  Scotland 
before  Edward  the  First,  observes:  '  That  they  should 
have  pushed  their  claims  only  shows  that  the  Church 
had  not  yet  absolutely  established  the  rule  *kat  from 


LKCI.  n.  THE  SEXES   IN  IRELAND.  01 

her  and  her  ceremony  and  sacrament  could  alone 
come  the  union  capable  of  transmitting  a  right  of 
succession  to  offspring.'  The  tract  on  l  Social  Con- 
nexions'  notices  a  'first'  wife,  and  the  recogni- 
tion may  be  attributable  to  the  Church,  but  on 
the  whole  my  impression  certainly  is  that  the  ex- 
tremely ascetic  form  under  which  Christianity  was 
introduced  into  Ireland  was  unfavourable  to  its  ob- 
taining a  hold  on  popular  morality.  The  common 
view  seems  to  have  been  that  chastity  was  the  profes- 
sional virtue  of  a  special  class,  for  the  Brehon  tracts, 
which  make  the  assumptions  I  have  described  as  to 
the  morals  of  the  laity,  speak  of  irregularity  of  life  in 
a  monk  or  bishop  with  the  strongest  reprobation  and 
disgust.  At  the  present  moment  Ireland  is  probably 
the  one  of  all  Western  countries  in  which  the  relations 
of  the  sexes  are  most  nearly  on  the  footing  required 
by  the  Christian  theory ;  nor  is  there  any  reasonable 
doubt  that  this  result  has  been  brought  about  in  the 
main  by  the  Roman  Catholic  clergy.  But  this  puri- 
fication of  morals  was  effected  during  the  period 
through  which  monks  and  monasticism  were  either 
expelled  from  Ireland  or  placed  under  the  ban  of  the 
law. 

I  will  take  this  opportunity  of  saying  that  the 
influence  of  Christianity  on  a  much  more  famous 
system  than  the  Brehon  law  has  always  seemed  to 
me  to  be  greatly  overstated  by  M.  Tioplong  and  other 


62  CHRISTIANITY  AND   ROMAN   LAW.  MCT.  n. 

well-known  juridical  writers.  There  is,  of  course, 
evidence  of  Christian  influence  on  Roman  law  in  the 
disabilities  imposed  on  various  classes  of  heretics  and 
in  the  limitations  of  that  liberty  of  divorce  which 
belonged  to  the  older  jurisprudence.  But,  even  in 
respect  of  divorce,  the  modifications  strike  me  as  less 
than  might  have  been  expected  from  what  we  know 
cf  the  condition  of  opinion  in  the  Roman  world  ;  and, 
as  regards  certain  improvements  said  to  have  been 
introduced  by  Christianity  into  the  Imperial  law  of 
slavery,  they  were  probably  quickened  by  its  influ- 
ence, but  they  began  in  principles  which  were  of 
Stoical  rather  than  of  Christian  origin.  I  do  not 
question  the  received  opinion  that  Christianity  greatly 
mitigated  and  did  much  to  abolish  personal  and  pre- 
dial slavery  in  the  West,  but  the  Continental  lawyers 
of  whom  I  spoke  considerably  antedate  its  influence, 
and  take  far  too  little  account  of  the  prodigious  effects 
subsequently  produced  by  the  practical  equality  of  all 
men  within  the  pale  of  the  Catholic  priesthood.  But 
I  principally  deprecate  these  statements,  which  in 
some  countries  have  almost  become  professional  com- 
monplaces, for  two  reasons.  They  slur  over  a  very 
instructive  fact,  the  great  unmalleability  of  all  bodies 
of  law  ;  and  they  obscure  an  interesting  and  yet  un- 
settled problem,  the  origin  of  the  Canon  law.  The 
truth  seems  to  be  that  the  Imperial  Roman  law  did 


n.  CANON  LAW.  en 

not  satisfy  the  morality  of  the  Christian  communities, 
and  this  is  the  most  probable  reason  why  another 
body  of  rules  grew  up  by  its  side  and  ultimately 
almost  rivalled  it.  * 


64  KINSHIP  AS   THE   BASIS   OF   SOCIETY.         LISOT.  m 


LECTURE  III. 

KINSHIP  AS  THE  BASIS   OF  SOCIETY. 

THE  most  recent  researches  into  the  primitive  history 
of  society  point  to  the  conclusion  that  the  earliest 
tie  which  knitted  men  together  in  communities 
was  Consanguinity  or  Kinship.  The  subject  has 
been  approached  of  late  years  from  several  different 
sides,  and  there  has  been  much  dispute  as  to  what 
the  primitive  blood- relationship  implied,  and  how  it 
arose ;  but  there  has  been  general  agreement  as  to  the 
fact  I  have  stated.  The  caution  is  perhaps  needed 
that  we  must  not  form  too  loose  a  conception  of  the 
kinship  which  once  stood  in  the  place  of  the  multi- 
form influences  which  are  now  the  cement  of  hu- 
man societies.  It  was  regarded  as  an  actual  bond  of 
union,  and  in  no  respect  as  a  sentimental  one.  The 
notion  of  what,  for  want  of  a  better  phrase,  I  must 
call  a  moral  brotherhood  in  the  whole  human  race  has 
been  steadily  gaining  ground  during  the  whole  course 
of  history,  and  we  have  now  a  large  abstract  term 


JJBCT.  m.  PRIMITIVE   VIEW   OF   KINSHIP.  65 

answering  to  this  notion — Humanity.  The  most 
powerful  of  the  agencies  which  have  brought  about 
this  broader  and  laxer  view  of  kinship  has  un- 
doubtedly been  Religion,  and  indeed  one  great 
Eastern  religion  extended  it  until  for  some  purposes 
it  embraced  all  sentient  nature.  All  this  modern 
enlargement  of  the  primitive  conception  of  kinship 
must  be  got  rid  of  before  we  can  bring  it  home  to 
ourselves.  There  was  no  brotherhood  recognised  by 
our  savage  forefathers  except  actual  consanguinity 
regarded  as  a  fact.  If  a  man  was  not  of  kin  to 
another  there  was  nothing  between  them.  He  was 
an  enemy  to  be  slain,  or  spoiled,  or  hated,  as  much  as 
the  wild  beasts  upon  which  the  tribe  made  war,  as 
belonging  indeed  to  the  craftiest  and  the  cruellest 
order  of  wild  animals.  It  would  scarcely  be  too  strong 
an  assertion  that  the  dogs  which  followed  the  camp  had 
more  in  common  with  it  than  the  tribesmen  of  an 
alien  and  unrelated  tribe. 

The  tribes  of  men  with  which  the  student  of 
jurisprudence  is  concerned  are  exclusively  those  be- 
longing to  the  races  now  universally  classed,  on  the 
ground  of  linguistic  affinities,  as  Aryan  and  Semitic. 
Besides  these  he  has  at  most  to  take  into  account 
that  portion  of  the  outlying  mass  of  mankind  which 
has  lately  been  called  Uralian,  the  Turks,  Hungarians, 
and  Finns.  The  characteristic  of  nil  these  races, 
when  in  the  tribal  state,  is  that  the  tribes  themselves, 

F 


66  ARYAN,   SEMITIC,   AND   URALIAN  TRIBES.       LECT.  in, 

and  all  subdivisions  of  them,  are  conceived  by  the 
men  who  compose  them  as  descended  from  a  single 
male  ancestor.  Such  communities  see  the  Family 
group  with  which  they  are  familiar  to  be  made  up  of 
the  descendants  of  a  single  living  man,  and  of  his 
wife  or  wives;  and  perhaps  they  are  accustomed  to 
that  larger  group,  formed  of  the  descendants  of  a 
single  recently  deceased  ancestor,  which  still  survives 
in  India  as  a  compact  assemblage  of  blood -relatives, 
though  it  is  only  known  to  us  through  the  traces  it 
has  left  in  our  Tables  of  Inheritance.  The  mode  of 
constituting  groups  of  kinsmen  which  they  see  pro- 
ceeding before  their  eyes  they  believe  to  be  identical 
with  the  process  by  which  the  community  itself  was 
formed.  Thus  the  theoretical  assumption  is  that  all 
the  tribesmen  are  descended  from  some  common  an- 
cestor, whose  descendants  have  formed  sub-groups, 
which  again  have  branched  off  into  others,  till  the 
smallest  group  of  all,  the  existing  Family,  is  reached. 
I  believe  I  may  say  that  there  is  substantial  agreement 
as  to  the  correctness  of  these  statements  so  long  as 
they  are  confined  to  the  Aryan.  Semitic,  and  Ural i an 
races.  At  most  it  is  asserted  that,  among  the  re- 
corded usages  of  portions  of  these  races,  there  are 
obscure  indications  of  another  and  an  earlier  state  of 
things.  But  then  a  very  different  set  of  assertions 
from  these  are  made  concerning  that  large  part  of 
the  human  race  which  cannot  be  classed  as  Aryan, 
Semitic,  or  Uralian.  It  is,  first  of  all,  alleged  that 


LBCT.  m.         ABNORMAL   CONCEPTIONS   OF   KINSHIP.  67 

there  is  evidence  of  the  wide  prevalence  among  them 
of  ideas  on  the  subject  of  Consanguinity  which  are 
irreconcileable  with  the  assumption  of  common  de- 
scent from  a  single  ancestor.  Next,  it  is  pointed  out 
that  some  small,  isolated,  and  very  barbarous  com- 
munities— perhaps  long  hidden  in  inaccessible  Indian 
valleys,  or  within  the  ring  of  a  coral  reef  in  the 
Southern  Seas — still  follow  practices  which  it  would 
be  incorrect  and  unjust  to  call  immoral,  because,  in 
the  view  we  are  considering,  they  are  older  than 
morality.  The  suggestion  is  finally  made  that  if 
these  practices  were,  in  an  older  stage  of  the  world's 
history,  very  much  more  widely  extended  than  at 
present,  the  abnormal,  non- Aryan,  non- Semitic,  non- 
Uralian  notions  about  kinship  of  which  I  have  spoken 
would  find  their  explanation.  If,  indeed,  the  con- 
clusion here  pointed  at  expresses  the  truth,  and  if 
these  practices  were  really  at  one  time  universal,  it 
would  be  an  undeserved  compliment  to  the  human 
race  to  say  that  it  once  followed  the  ways  of  the 
lower  animals,  since,  in  point  of  fact,  all  the  lower 
animals  do  not  follow  the  practices  thus  attributed 
to  them.  But,  whatever  be  the  interest  of  such 
enquiries,  they  do  not  concern  us  till  the  Kinship  of 
the  higher  races  can  be  distinctly  shown  to  have 
grown  out  of  the  Kinship  now  known  only  to  the 
lower,  and  even  then  they  concern  us  only  re- 
motely. No  doubt  several  recent  writers  do  believe 

»  2 


«8  KINSHIP  AND   POWER  UDCT.  m. 

in  the  descent  of  one  form  of  consanguinity  from  the 
other.  Mr.  Lewis  Morgan,  of  New  York,  the  author 
of  a  remarkable  and  very  magnificent  volume  on 
4  Systems  of  Consanguinity  and  Affinity  in  the  Hu- 
man Family,'  published  by  the  Smithsonian  Institute 
at  Washington,  reckons  no  less  than  ten  stages 
(p.  486)  through  which  communities  founded  on 
kinship  have  passed  before  that  form  of  the  family 
was  developed  out  of  which  the  Aryan  tribes  con- 
ceive themselves  to  have  sprung.  But  Mr.  Morgan 
also  says  of  the  system  known  upon  the  evidence 
actually  to  prevail  among  the  Aryan,  Semitic,  and 
Uralian  divisions  of  mankind  that  (p.  469)  it '  mani 
festly  proceeds  upon  the  assumption  of  the  existence 
of  marriage  between  single  pairs,  and  of  the  certainty 
of  parentage  through  the  marriage  relation. '  '  Hence/ 
he  adds,  '  it  must  have  come  into  existence  after  the 
establishment  of  marriage  between  single  pairs.' 

A  remark  of  considerable  importance  to  the  stu- 
dent of  early  usage  has  now  to  be  made  respecting 
the  bond  of  union  recognised  by  these  greater  races. 
Kinship,  as  the  tie  binding  communities  together, 
tends  to  be  regarded  as  the  same  thing  with  subjec- 
tion to  a  common  authority.  The  notions  of  Power 
and  Consanguinity  blend,  but  they  in  nowise  super- 
sede one  another.  We  have  a  familiar  example  of 
this  mixture  of  ideas  in  the  subjection  of  the  smallest 
group,  the  Family,  to  its  patriarchal  head.  Wherever 


LBOT.  m.  KINSHIP  AND   POWER.  68 

we  have  evidence  of  such  a  group,  it  becomes  difficult 
to  say  whether  the  persons  comprised  in  it  are  most 
distinctly  regarded  as  kinsmen,  or  as  servile  or  semi- 
servile  dependants  of  the  person  who  was  the  source 
of  their  kinship.  The  confusion,  however,  if  we  may 
so  style  it,  of  kinship  with  subjection  to  patriarchal 
power  is  observable  also  in  the  larger  groups  into 
which  the  Family  expands.  In  some  cases  the  Tribe 
can  hardly  be  otherwise  described  than  as  the  group 
of  men  subject  to  some  one  chieftain.  This  peculiar 
blending  of  ideas  is  undoubtedly  connected  with  the 
extension  (a  familiar  fact  to  most  of  us)  of  the  area  of 
ancient  groups  of  kindred  by  artifices  or  fictions. 
Just  as  we  find  the  Family  recruited  by  strangers 
brought  under  the  paternal  power  of  its  head  by 
adoption,  so  we  find  the  Tribe,  or  Clan,  including  a 
number  of  persons,  in  theory  of  kin  to  it,  yet  in  fact 
connected  with  it  only  by  common  dependence  on  the 
Chief.  I  do  not  affect  to  give  any  simple  explanation 
of  the  subjection  of  the  various  assemblages  of  kindred 
to  forms  of  power  of  which  the  patriarchal  power  of 
the  head  of  the  family  is  the  type.  Doubtless  it  is 
partly  to  be  accounted  for  by  deep-seated  instincts. 
But  Mr.  Morgan's  researches  seem  to  me  to  have  sup- 
plied another  partial  explanation.  He  has  found  that 
among  rude  and  partially  nomad  communities  great 
numbers  of  kindred,  whom  we  should  keep  apart  in 
mind,  and  distinguish  from  one  another  in  language, 


70 


KINSHIP  AND   POWER. 


LBCT.  IH, 


are  grouped  together  in  great  classes  and  called  by 
*ne  same  general  names.  Every  man  is  related  to  an 
extraordinary  number  of  men  called  his  brothers,  to 
an  extraordinary  number  called  his  sons,  to  an  extra- 
ordinary number  called  his  uncles.  Mr.  Morgan 
'explains  the  fact  in  his  own  way,  but  he  points  out 
the  incidental  convenience  served  by  this  method  of 
classification  and  nomenclature.  Though  the  point 
may  not  at  first  strike  us,  kinship  is  a  clumsy  basis 
for  communities  of  any  size,  on  account  of  the  diffi- 
culty which  the  mind,  and  particularly  the  untutored 
mind,  has  in  embracing  all  the  persons  bound  to  any 
one  man  by  tie  of  blood,  and  therefore  (which  is  the 
important  matter)  connected  with  him  by  common 
responsibilities  and  rights.  A  great  extension  and 
considerable  relaxation  of  the  notion  of  kinship  gets 
over  the  difficulty  among  the  lower  races,  but  it  may 
be  that,  among  the  higher,  Patriarchal  Power  answers 
the  same  object.  It  simplifies  the  conceptions  of 
kinship  and  of  conjoint  responsibility,  first  in  the 
Patriarchal  Family  and  ultimately  in  the  Clan  or  Tribe. 
We  have  next  to  consider  the  epoch,  reached  at 
some  time  by  all  the  portions  of  mankind  destined  to 
civilisation,  at  which  tribal  communities  settle  down 
upon  a  definite  space  of  land.  The  liveliest  account 
which  I  have  read  of  this  process  occurs  in  an  ancient 
Indian  record  which  has  every  pretension  to  authen- 
ticity. In  a  very  interesting  volume  published  by  the 


IJ3CT.  m.  INDIAN  MEMORIAL   VERSES.  71 

Government  of  Madras,  and  called  '  Papers  on  Mirasi 
Right'  (Madras,  1862),  there  are  printed  some  ancient 
Memorial  Verses,  as  they  are  called,  which  describe  the 
manner  in  which  the  Vellalee,  a  possibly  Aryan  tribe, 
followed  their  chief  into  Tondeimandalam,  a  region 
roughly  corresponding  with  a  state  once  famous  in 
modern  Indian  history,  Arcot.  There  the  Vellalee  con- 
quered and  extirpated,  or  enslaved,  some  more  primi- 
tive population  and  took  permanent  possession  of  its 
territory.  The  poetess — for  the  lines  are  attributed 
to  a  woman — compares  the  invasion  to  the  flowing  of 
tho  juice  of  the  sugar-cane  over  a  flat  surface.  ('  Mirasi 
Papers,'  p.  233.)  The  juice  crystallises,  and  the  crys- 
tals are  the  various  village-communities.  In  the 
middle  is  one  lump  of  peculiarly  fine  sugar,  the  place 
where  is  the  temple  of  the  god.  Homely  as  is  the 
image,  it  seems  to  me  in  one  respect  peculiarly  felici- 
tous. It  represents  the  tribe,  though  moving  in  ai 
fused  mass  of  men,  as  containing  within  itself  a  prin- 
ciple of  coalescence  which  began  to  work  as  soon  as 
the  movement  was  over.  The  point  is  not  always 
recollected.  Social  history  is  frequently  considered 
as  beginning  with  the  tribal  settlement,  and  as  though 
no  principles  of  union  had  been  brought  by  the  tribe 
from  an  older  home.  But  we  have  no  actual  know- 
ledge of  any  aboriginal  or  autochthonous  tribe. 
Wherever  we  have  any  approximately  trustworthy 
information  concerning  the  tribes  which  we  discern 


72  SETTLEMENT   OF   TRIBES   ON  LAND.  user.  ra. 

in  the  far  distance  of  history,  they  have  always  come 
from  some  more  ancient  seat.  The  Vellalee,  in  the 
Indian  example,  must  have  been  agriculturists  some- 
where, since  they  crystallised  at  once  into  village- 
communities. 

It  has  long  been  assumed  that  the  tribal  constitu- 
tion of  society  belonged  at  first  to  nomad  communi- 
ties, and  that,  when  associations  of  men  first  settled 
down  upon  land,  a  great  change  came  over  them. 
But  the  manner  of  transition  from  nomad  to  settled 
life,  and  its  effects  upon  custom  and  idea,  have  been 
too  much  described,  as  it  seems  to  me,  from  mere 
conjecture  of  the  probabilities  ;  and  the  whole  pro- 
cess, as  I  have  just  observed,  has  been  conceived  as 
more  abrupt  than  such  knowledge  as  we  have  would 
lead  us  to  believe  it  to  have  been.  Attention  has 
thus  been  drawn  off  from  one  assertion  on  this  sub- 
ject which  may  be  made,  I  think,  upon  trustworthy 
evidence — that,  from  the  moment  when  a  tribal  com- 
munity settles  down  finally  upon  a  definite  space  of 
f  land,  the  Land  begins  to  be  the  basis  of  society  in 
place  of  the  Kinship.  The  change  is  extremely 
gradual,  and  in  some  particulars  it  has  not  even  now 
been  fully  accomplished,  but  it  has  been  going  on 
through  the  whole  course  of  history.  The  constitu- 
tion of  the  Family  through  actual  blood-relationship 
is  of  course  an  observable  fact,  but,  for  all  groups  of 
men  larger  than  the  Family,  the  Land  on  which  they 


X.BCI.  in.  KINSHIP   AND    THE   LAND.  73 

live  tends  to  become  the  bond  of  union  between  them, 
at  the  expense  of  Kinship,  ever  more  and  more 
vaguely  conceived.  We  can  trace  the  development 
of  idea  both  in  the  large  and  now  extremely  miscel 
laneous  aggregations  of  men  combined  in  States  01 
Political  Communities,  and  also  in  the  smaller  aggre- 
gations collected  in  Village-Communities  and  Manors, 
among  whom  landed  property  took  its  rise.  The 
barbarian  invaders  of  the  Western  Roman  Empire, 
though  not  uninfluenced  by  former  settlements  in 
older  homes,  brought  back  to  Western  Europe  a 
mass  of  tribal  ideas  which  the  Roman  dominion  had 
banished  from  it;  but,  from  the  moment  of  their 
final  occupation  of  definite  territories,  a  transforma- 
tion of  these  ideas  began.  Some  years  ago  I  pointed 
out  ('Ancient  Law,'  pp.  103  et  seq.)  the  evidence  fur- 
nished by  the  history  of  International  Law  that  the 
notion  of  territorial  sovereignty,  which  is  the  basis  of 
the  international  system,  and  which  is  inseparably 
connected  with  dominion  over  a  definite  area  of  land, 
very  slowly  substituted  itself  for  the  notion  of  tribal 
sovereignty.  Clear  traces  of  the  change  are  to  be 
seen  in  the  official  style  of  kings.  Of  our  own  kings, 
King  John  was  the  first  who  always  called  himself 
King  of  England.  (Freeman,  '  Norman  Conquest,'  I. 
82,  84.)  His  predecessors  commonly  or  always  called 
themselves  Kings  of  the  English.  The  style  of  the 
king  reflected  the  older  tribal  sovereignty  for  a  much 


74          KINGS  OP  FRANCE  AND  OP  THE  FRENCH.      LECT.  m 

longer  time  in  France.  The  title  of  King  of  France 
may  no  doubt  have  come  into  use  in  the  vernacular 
soon  after  the  accession  of  the  dynasty  of  Capet,  but 
it  is  an  impressive  fact  that,  even  at  the  time  of  the 
Massacre  of  St.  Bartholomew,  the  Kings  of  France 
were  still  in  Latin  *  Reges  Francorum ; '  and  Henry 
the  Fourth  only  abandoned  the  designation  because  it 
could  not  be  got  to  fit  in  conveniently  on  his  coins 
with  the  title  of  King  of  Navarre,  the  purely  feudal  and 
territorial  principality  of  the  Bourbons.  (Freeman, 
loc.  cit.}  We  may  bring  home  to  ourselves  the  trans- 
formation of  idea  in  another  way.  England  was  once 
the  country  which  Englishmen  inhabited.  English- 
men are  now  the  people  who  inhabit  England.  The 
descendants  of  our  forefathers  keep  up  the  tradition 
of  kinship  by  calling  themselves  men  of  English  race, 
but  they  tend  steadily  to  become  Americans  and 
Australians.  I  do  not  say  that  the  notion  of  con- 
sanguinity is  absolutely  lost ;  but  it  is  extremely 
diluted,  and  quite  subordinated  to  the  newer  view  of 
the  territorial  constitution  of  nations.  The  blended 
ideas  are  reflected  in  such  an  expression  as  '  Father- 
land,' which  is  itself  an  index  to  the  fact  that  our 
thoughts  cannot  separate  national  kinship  from  com- 
mon country.  No  doubt  it  is  true  that  in  our  day 
the  older  conception  of  national  union  through  con- 
sanguinity has  seemed  to  be  revived  by  theories 
which  are  sometimes  called  generally  theories  of 


LBCT.  m.  THEORIES   OF  NATIONALITY.  75 

Nationality,  and  of  which  particular  forms  are  known 
to  us  as  Pan-Sclavism  and  Pan-Teutonism.  Such 
theories  are  in  truth  a  product  of  modern  philology, 
and  have  grown  out  of  the  assumption  that  linguistic 
affinities  prove  community  of  blood.  But  wherever 
the  political  theory  of  Nationality  is  distinctly  con- 
ceived, it  amounts  to  a  claim  that  men  of  the  same 
race  shall  be  included,  not  in  the  same  tribal,  but  in 
the  same  territorial  sovereignty. 

We  can  perceive,  from  the  records  of  the  Hellenic 
and  Latin  city-communities,  that  there,  and  probably 
over  a  great  part  of  the  world,  the  substitution  of  com- 
mon territory  for  common  race  as  the  basis  of  national 
union  was  slow,  and  not  accomplished  without  very 
violent  struggles.  '  The  history  of  political  ideas 
begins,'  I  have  said  elsewhere,  *  with  the  assumption 
that  kinship  hi  blood  is  the  sole  possible  ground  of 
community  in  political  functions ;  nor  is  there  any  of 
those  subversions  of  feeling  which  we  emphatically 
term  revolutions  so  startling  and  so  complete  as  the 
change  which  is  accomplished  when  some  other  prin- 
ciple— such  as  that,  for  instance,  of  local  contiguity 
— establishes  itself  for  the  first  time  as  the  basis  of 
common  political  action.'  The  one  object  of  ancient 
democracies  was,  in  fact,  to  be  counted  of  kin  to  the 
aristocracies,  simply  on  the  ground  that  the  aristocracy 
of  old  citizens,  and  the  democracy  of  new,  lived  within 
the  same  territorial  circumscription.  The  goal  was 


76  TRIBAL  AND   TERRITORIAL   SOVEREIGNTY.      IECX.  ra 

reached  in  time  both  by  the  Athenian  Demos  and 
by  the  Roman  Plebs  ;  but  the  complete  victory  of 
the  Roman  popular  party  was  the  source  of  influ- 
ences which  have  not  spent  themselves  at  the  present 
moment,  since  it  is  one  of  the  causes  why  the  passage 
from  the  Tribal  to  the  Territorial  conception  of  Sove- 
reignty was  much  more  easy  and  imperceptible  in  the 
modern  than  in  the  older  world.  I  have  before  stated 
that  a  certain  confusion,  or  at  any  rate  indistinctness 
of  discrimination,  between  consanguinity  and  common 
subjection  to  power  is  traceable  among  the  rudiments 
of  Aryan  thought,  and  no  doubt  the  mixture  of  no- 
tions has  helped  to  bring  about  that  identification 
of  common  nationality  with  common  allegiance  to 
the  King,  which  has  greatly  facilitated  the  absorption 
of  new  bodies  of  citizens  by  modern  commonwealths. 
But  the  majesty  with  which  the  memory  of  the 
Roman  Empire  surrounded  all  kings  has  also  greatly 
contributed  to  it,  and  without  the  victory  of  the 
Roman  Plebeians  there  would  never  have  been,  i 
need  hardly  say,  any  Roman  Empire. 

The  new  knowledge  which  has  been  rapidly 
accumulating  of  late  years  enables  us  to  track  pre- 
cisely the  same  transmutation  of  ideas  amid  the 
smaller  groups  of  kinsmen  settled  on  land  and  form- 
ing, not  Commonwealths,  but  Yillage-Communities. 
The  historian  of  former  days  laboured  probably  under 
no  greater  disadvantage  than  that  caused  by  his 


LECT.  ill.          STATES    iND    VILLAGE-COMMUNITIES.  77 

unavoidable  ignorance  of  the  importance  of  these 
communities,  and  by  the  necessity  thus  imposed  upon 
him  of  confining  his  attention  to  the  larger  assemblages 
of  tribesmen.  It  has  often,  indeed,  been  noticed  that 
a  Feudal  Monarchy  was  an  exact  counterpart  of  a 
Feudal  Manor,  but  the  reason  of  the  correspondence 
is  only  now  beginning  to  dawn  upon  us,  which  is, 
that  both  of  them  were  in  their  origin  bodies  of 
assumed  kinsmen  settled  on  land  and  undergoing  the 
same  transmutation  of  ideas  through  the  fact  of 
settlement.  The  history  of  the  larger  groups  ends 
iii  the  modern  notions  of  Country  and  Sovereignty; 
the  history  of  the  smaller  in  the  modern  notions  of 
Landed  Property.  The  two  courses  of  historical  de- 
velopment were  for  a  long  while  strictly  parallel, 
though  they  have  ceased  to  be  so  now. 

The  naturally  organised,  self  existing,  Village- 
Community  can  no  longer  be  claimed  as  an  institution 
specially  characteristic  of  the  Aryan  races.  M.  de 
Laveleye,  following  Dutch  authorities,  has  described 
these  communities  as  they  are  found  in  Java  ;  and 
M.  Renan  has  discovered  them  among  the  obscurer 
Semitic  tribes  in  Northern  Africa.  But,  wherever 
they  have  been  examined,  the  extant  examples  of 
the  group  suggest  the  same  theory  of  its  origin  which 
Mr.  Freeman  ('  Comparative  Politics,'  p.  103)  has 
advanced  concerning  the  Germanic  village-community 
or  Mark  ;  '  This  lowest  political  unit  was  at  first, 


78  STAGES   OP   THE   COMMUNITY.  LECT.  in 

here  (i.  e.  in  England)  as  elsewhere,  formed  of  men 
bound  together  by  a  tie  of  kindred,  in  its  first  estate 
natural,  in  a  later  stage  either  of  kindred  natural  or 
artificial.'  The  evidence,  however,  is  now  quite  ample 
enough  to  furnish  us  with  strong  indications  not 
only  of  the  mode  in  which  these  communities  began, 
but  of  the  mode  in  which  they  transformed  them- 
selves. The  world,  in  fact,  contains  examples  of 
cultivating  groups  in  every  stage,  from  that  in  which 
they  are  actually  bodies  of  kinsmen,  to  that  in  which 
the  merest  shadow  of  consanguinity  survives  and  the 
assemblage  of  cultivators  is  held  together  solely  by 
the  land  which  they  till  in  common.  The  great  steps 
in  the  scale  of  transition  seem  to  me  to  be  marked  by 
the  Joint  Family  of  the  Hindoos,  by  the  House- 
Community  of  the  Southern  Sclavonians,  and  by  the 
true  Village-Community,  as  it  is  found  first  in  Russia 
and  next  in  India.  The  group  which  I  have  placed 
at  the  head,  the  Hindoo  Joint  Family,  is  really  a  body 
of  kinsmen,  the  natural  and  adoptive  descendants  of 
a  known  ancestor.  Although  the  modern  law  of 
India  gives  such  facilities  for  its  dissolution  that  it  is 
one  of  the  most  unstable  of  social  compounds,  and 
rarely  lasts  beyond  a  couple  of  generations,  still,  so 
long  as  it  lasts,  it  has  a  legal  corporate  existence,  and 
exhibits,  in  the  most  perfect  state,  that  community  of 
proprietary  enjoyment  which  has  been  so  often  ob- 
served, and  (let  me  add)  so  often  misconstrued,  in 


user.  m.  THE   HOUSE-COMMUNITY.  79 

cultivating  societies  of  archaic  type.  '  According  to 
the  true  notion  of  a  joint  undivided  Hindoo  family,* 
said  the  Privy  Council,  '  no  member  of  the  family, 
while  it  remains  undivided,  can  predicate  of  the  joint 
undivided  property  that  he,  that  particular  member, 
has  a  certain  definite  share.  .  .  .  The  proceeds  of 
undivided  property  must  be  brought,  according  to 
the  theory,  into  the  common  chest  or  purse,  and 
then  dealt  with  according  to  the  modes  of  enjoy- 
ment of  the  members  of  an  undivided  family.'  (Per 
Lord  Westbury,  Appovier  v.  Rama  Subba  Aiyan, 
11  Moore's  Indian  Appeals,  75.)  While,  however, 
these  Hindoo  families,  *  joint  in  food,  worship,  and 
estate,'  are  constantly  engaged  in  the  cultivation  of 
land,  and  dealing  with  its  produce  'according  to 
the  modes  of  enjoyment  of  an  undivided  family,' 
they  are  not  village-communities.  They  are 
only  accidentally  connected  with  the  land,  how- 
ever extensive  their  landed  property  may  be. 
What  holds  them  together  is  not  land,  but 
consanguinity,  and  there  is  no  reason  why  they 
should  not  occupy  themselves,  as  indeed  they  fre- 
quently do,  with  tra-le  or  with  the  practice  of  a 
handicraft.  The  House-Community,  which  comes 
next  in  the  order  of  development,  has  been  examined 
by  M.  de  Laveleye  (P.  et  s.  F.  P.,  p.  201),  and  by 
Mr.  Patterson  ('Fortnightly  Review,'  No.  xliv.), 
in  Croatia,  Dalmatia,  and  Illyria,  countries  which, 


80  THE   HOUSE-COMMUNITY.  LECT.  in, 

though  nearer  to  us  than  India,  have  still  much  in 
common  with  the  parts  of  the  East  not  brought 
completely  under  Mahometan  influences ;  but  there 
is  reason  to  believe  that  neither  Roman  law  nor 
feudalism  entirely  crushed  it  even  in  Western 
Europe.  It  is  a  remarkable  fact  that  assemblages  of 
kinsmen,  almost  precisely  the  counterpart  of  the 
House-Communities  surviving  among  the  Sclavonians, 
were  observed  by  M.  Dupin,  in  1840,  in  the  French 
Department  of  the  Nievre,  and  were  able  to  satisfy 
him  that  even  in  1500  they  had  been  accounted 
ancient.  These  House-Communities  seem  to  me  to 
be  simply  the  Joint  Family  of  the  Hindoos,  allowed  to 
expand  itself  without  hindrance  and  settled  for  ages 
on  the  land.  All  the  chief  characteristics  of  the 
Hindoo  institution  are  here — the  common  home  and 
common  table,  which  are  always  in  theory  the  centre 
of  Hindoo  family  life  ;  the  collective  enjoyment  of 
property  and  its  administration  by  an  elected  manager. 
Nevertheless,  many  instructive  changes  have  begun 
which  show  how  such  a  group  modifies  itself  in  time 
The  community  is  a  community  of  kinsmen  ;  but, 
though  the  common  ancestry  is  probably  to  a  great 
extent  real,  the  tradition  has  become  weak  enough 
to  admit  of  considerable  artificiality  being  introduced 
into  the  association,  as  it  is  found  at  any  given 
moment,  through  the  absorption  of  strangers  from 
outside.  Meantime,  the  land  tends  to  become  the 


.  ra.  THE   VILLAGE-COMMUNITY.  81 

true  basis  of  the  group ;  it  is  recognised  as  of  pre- 
eminent importance  to  its  vitality,  and  it  remains 
common  property,  while  private  ownership  is  allowed 
to  show  itself  in  moveables  and  cattle.  In  the  true 
Village-Community,  the  common  dwelling  and  com- 
mon table  which  belong  alike  to  the  Joint  Family  and 
to  the  House-Community,  are  no  longer  to  be  found. 
The  village  itself  is  an  assemblage  of  houses,  con- 
tained indeed  within  narrow  limits,  but  composed  of 
separate  dwellings,  each  jealously  guarded  from  the 
intrusion  of  a  neighbour.  The  village  lands  are  no 
longei  the  collective  property  of  the  community  ;  the 
arable  lands  have  been  divided  between  the  various 
households ;  the  pasture  lands  have  been  partially 
divided ;  only  the  waste  remains  in  common.  In  com- 
paring the  two  extant  types  of  Village-Community 
which  have  been  longest  examined  by  good  observers, 
the  Russian  and  the  Indian,  we  may  be  led  to  think 
that  the  traces  left  on  usage  and  idea  by  the  ancient 
collective  enjoyment  are  faint  exactly  in  proportion  L 
to  the  decay  of  the  theory  of  actual  kinship  among 
the  co-villagers.  The  Russian  peasants  of  the  same 
village  really  believe,  we  are  told,  in  their  common 
ancestry,  and  accordingly  we  find  that  in  Russia  the 
arable  lands  of  the  village  are  periodically  re-dis- 
tributed, and  that  the  village  artificer,  even  should  he 
carry  his  tools  to  a  distance,  works  for  the  profit  of 
his  co-villagers.  In  India,  though  the  villagers  are 

6 


82  THE   TILLAGE-COMMUNITY.  LECT.  ill 

still  a  brotherhood,  and  though  membership  in  the 
brotherhood  separates  a  man  from  the  world  outside, 
it  is  very  difficult  to  say  in  what  the  tie  is  conceived 
as  consisting.     Many  palpable  facts  in  the  composition 
/  of  the  community  are  constantly  inconsistent  with  the 
/'  actual  descent  of  the  villagers  from  any  one  ancestor. 
:  Accordingly,  private   property  in  land   has   grown 
!  up,  though  its  outlines   are  not  always   clear ;   the 
periodical   re-division  of  the  domain  has  become  a 
/mere  tradition,  or  is  only  practised  among  the  ruder 
;  portions  of  the  race  ;  and  the  results  of  the  theoretical 
\  kinship  are  pretty  much  confined  to  the  duty  of  sub- 
mitting to  common  rules  of  cultivation  and  pasturage, 
of  abstaining   from   sale   or   alienation  without  the 
(consent  of  the  co- villagers,  and  (according  to  some 
/opinions)  of  refraining  from  imposing  a  rack-rent 
upon  members  of  the  same  brotherhood.     Thus,  the 
[ndian  Village-Community  is  a  body  of  men  held  to- 
gether by  the  land  which  they  occupy :  the  idea  of 
[common  blood  and  descent  has  all  but  died  out.     A 
few  steps  more  in  the  same  course  of  development — 
and  these  the  English  law  is  actually  hastening — will 
diffuse   the  familiar  ideas  of  our  own   country  and 
time  throughout  India;  the  Village-Community  will 
disappear,  and  landed  property,  in  the  full  English 
sense,  will  come  into  existence.     Mr.  Freeman  tells 
us  that  Uffington,  Gillingham,  and  Tooting  were  in 
all  probability  English  village-communities  originally 


M3CT.  in.   TRANSFORMATION   OF   VILLAGE-COMMUNITIES.       83 

settled  by  the  Uffingas,  Gillingas,  and  Totingas, 
three  Teutonic  joint-families.  But  assuredly  all  men 
who  live  in  Tooting  do  not  consider  themselves 
brothers ;  they  barely  acknowledge  duties  imposed 
on  them  by  their  mutual  vicinity ;  their  only  real  tie 
is  through  their  common  country. 

The  '  natural  communism '  of  the  primitive  cul- 
tivating groups  has  sometimes  been  described  of  late 
years,  and  more  particularly  by  Russian  writers,  as 
an  anticipation  of  the  most  advanced  and  trenchant 
democratic  theories.  No  account  of  the  matter  could 
in  my  judgment  be  more  misleading.  If  such  terms 
as  c  aristocratic '  and  '  democratic '  are  to  be  used  at 
all,  I  think  it  would  be  a  more  plausible  statement 
that  the  transformation  and  occasional  destruction  of 
the  village-communities  were  caused,  over  much  of 
the  world,  by  the  successful  assault  of  a  democracy 
on  an  aristocracy.  The  secret  of  the  comparatively 
slight  departure  of  the  Russian  village-communities 
from  what  may  be  believed  to  have  been  the  primitive 
type,  appears  to  me  to  lie  in  the  ancient  Russian 
practice  of  colonisation,  by  which  swarms  were  con- 
stantly thrown  off  from  the  older  villages  to  settle 
somewhere  in  the  enormous  wastes ;  but  the  Indian 
communities,  placed  in  a  region  of  which  the  popula- 
tion has  from  time  immemorial  been  far  denser  than 
in  the  North,  bear  many  marks  of  past  contests 
between  the  ancient  brotherhood  of  kinsmen  and  a 

o  2 


34       TRAXSFOKMATION   OF   VILLAGE-COMMUNITIES.    IBCT.  IIL 

class  of  dependants  outside  it  struggling  for  a  share 
in  the  land,  or  for  the  right  to  use  it  on  easy  terms. 
I  am  aware  that  there  is  some  grotesqueness  at  first 
sight  in  a  comparison  of  Indian  villagers,  in  their 
obscurity  and  ignorance,  and  often  in  their  squalid 
misery,  to  the  citizens  of  Athens  or  Rome ;  yet  no 
tradition  concerning  the  origin  of  the  Latin  and 
Hellenic  states  seems  more  trustworthy  than  that 
which  represents  them  as  formed  by  the  coalescence 
of  two  or  more  village-communities,  and  indeed,  even 
in  their  most  glorious  forms,  they  appear  to  me 
throughout  their  early  history  to  belong  essentially  to 
that  type.  It  has  often  occurred  to  me  that  Indian 
functionaries,  in  their  vehement  controversies  about 
the  respective  rights  of  the  various  classes  which 
make  up  the  village-community,  are  unconsciously 
striving  to  adjust,  by  a  beneficent  arbitration,  the 
claims  and  counter-claims  of  the  Eupatrids  and  the 
Demos,  of  the  Populus  and  the  Plebs.  There  is 
even  reason  to  think  that  one  well-known  result  of 
long  civil  contention  in  the  great  states  of  antiquity 
has  shown  itself  every  now  and  then  in  the  village- 
communities,  and  that  all  classes  have  had  to  submit 
to  that  sort  of  authority  which  assumed  its  most  in- 
nocent shape  in  the  office  of  the  Roman  Dictator,  its 
more  odious  in  the  usurpation  of  the  Greek  Tyrant. 
The  founders  of  a  part  of  one  modern  European  aris- 
tocracy, the  Danish,  are  known  to  have  been  originally 


LBCT.  m.  FEUDALISATION   OF  EUROPE.  86 

peasants  who  fortified  their  houses  during  deadly  vil- 
lage struggles  and  then  used  their  advantage. 

Such  commencements  of  nobility  as  that  to  which 
I  have  just  referred,  appear,  however,  to  have  been  ex- 
ceptional in  the  Western  world,  and  other  causes  must 
be  assigned  for  that  great  transformation  of  the  Village  - 
Community  which  has  been  carried  out  everywhere  in 
England,  a  little  less  completely  in  Germany,  much  less 
in  Russia  and  in  all  Eastern  Europe.  I  have  attempted 
in  another  work  ('  Village-Communities  in  the  East 
and  West,'  pp.  131  etseq.)  to  give  an  abridged  account 
of  all  that  is  known  or  has  been  conjectured  on  the 
ubject  of  that  '  Feudalisation  of  Europe'  which  has 
had  the  effect  of  converting  the  Mark  into  the  Manor, 
the  Village-Community  into  the  Fief;  and  I  shall  pre- 
sently say  much  on  the  new  light  which  the  ancient 
laws  of  Ireland  have  thrown  on  the  early  stages  of  the 
process.  At  present  I  will  only  observe  that,  when 
completed,  its  effect  was  to  make  the  Land  the  exclu- 
sive bond  of  union  between  men.  The  Manor  or  Fief 
was  a  social  group  wholly  based  upon  the  possession 
of  land,  and  the  vast  body  of  feudal  rules  which 
clustered  round  this  central  fact  are  coloured  by  it 
throughout.  That  the  Land  is  the  foundation  of  the 
feudal  system  has,  of  course,  been  long  and  fully  re- 
cognised ;  but  I  doubt  whether  the  place  of  the  fact 
in  history  has  been  sufficiently  understood.  It  marks 
a  phase  in  a  course  of  change  continued  through  long 


8G  DISSOLUTION  OF   FEUDAL   GROUPS.  LBCI.  in. 

ages  and  in  spheres  much  larger  than  that  of  landed 
property.     At  this  point  the  notion  of  common  kin- 
ship has  been  entirely  lost.     The  link  between  Lord 
i 
and  Vassal  produced  by  Commendation  is  of  quite  a 

different  kind  from  that  produced  by  Consanguinity. 
When  the  relation  which  it  created  had  lasted  some 
time,  there  would  have  been  no  deadlier  insult  to  the 
lord  than  to  attribute  to  him  a  common  origin  with 
the  great  bulk  of  his  tenants.  Language  still  retains 
a  tinge  of  the  hatred  and  contempt  with  which  the 
higher  members  of  the  feudal  groups  regarded  the 
.ower;  and  the  words  of  abuse  traceable  to  this  aver- 
sion are  almost  as  strong  as  those  traceable  to  differ- 
ences of  religious  belief.  There  is,  in  fact,  little  to 
choose  between  villain,  churl,  miscreant,  and  boor. 

The  break-up  of  the  feudal  group,  far  advanced  in 
most  European  countries,  and  complete  in  France  and 
England,  has  brought  us  to  the  state  of  society  in 
which  we  live.  To  write  its  course  and  causes  would 
be  to  re-write  most  of  modern  history,  economical  as 
well  as  political.  It  is  not,  however,  difficult  to  see 
that  without  the  ruin  of  the  smaller  social  groups, 
and  the  decay  of  the  authority  which,  whether  popu- 
larly or  autocratically  governed,  they  possessed  over 
the  men  composing  them,  we  should  never  have  had 
several  great  conceptions  which  lie  at  the  base  of  our 
stock  of  thought.  Without  this  collapse,  we  should 
never  have  had  the  conception  of  land  as  an  exchange- 


LKCT.  m.  MODERN   CONCEPTIONS.  67 

able  commodity,  differing  only  from  others  in  the 
limitation  of  the  supply;  and  hence,  without  it, 
some  famous  chapters  of  the  science  of  Political 
Economy  would  not  have  been  written.  Without  it, 
we  should  not  have  had  the  great  increase  in  modern 
times  of  the  authority  of  the  State — one  of  many 
names  for  the  more  extensive  community  held  to- 
gether by  common  country.  Consequently,  we 
should  not  have  had  those  theories  which  are  the 
foundation  of  the  most  recent  systems  of  jurispru- 
dence— the  theory  of  Sovereignty,  or  (in  other  words) 
of  a  portion  in  each  community  possessing  unlimited 
coercive  force  over  the  rest — and  the  theory  of  Law 
as  exclusively  the  command  of  a  sovereign  One  or 
Number.  We  should,  again,  not  have  had  the  fact 
which  answers  to  these  theories — the  ever-increasing 
activity  of  Legislatures ;  and,  in  all  probability,  that 
famous  test  of  the  value  of  legislation,  which  its 
author  turned  into  a  test  of  the  soundness  of  morals, 
would  never  have  been  devised — the  greatest  happi- 
ness of  the  greatest  number. 

In  saying  that  the  now  abundant  phenomena  of 
primitive  ownership  open  to  our  observation  strongly 
suggest  that  the  earliest  cultivating  groups  were 
formed  of  kinsmen,  that  these  gradually  became 
bodies  of  men  held  together  by  the  land  which  they 
cultivated,  and  that  Property  in  Land  (as  we  now 
understand  it)  grew  out  of  the  dissolution  of  these 


88  NO   SEPARATION   OF   STAGES.  LBCT.  in. 

latter  assemblages,  I  would  not  for  a  moment  be 
understood  to  assert  that  this  series  of  changes  can  be 
divided  into  stages  abruptly  separated  from  one 
another.  The  utmost  that  can  be  affirmed  is  that 
certain  periods  in  this  history  are  distinguished  by 
the  predominance,  though  not  the  exclusive  existence, 
of  ideas  proper  to  them.  Here,  as  elsewhere,  the 
world  is  full  of  '  survivals,'  and  the  view  of  society 
as  held  together  by  kinship  still  survives  when  it  is 
beginning  to  be  held  together  by  land.  Similarly, 
the  feudal  conception  of  social  relations  still  exercises 
powerful  influence  when  land  has  become  a  mer- 
chantable commodity.  There  is  no  country  in  which 
the  theory  of  land  as  a  form  of  property  like  any 
other  has  been  more  unreservedly  accepted  than  our 
own.  Yet  English  lawyers  live  in  face  feodorum. 
Our  law  is  saturated  with  feudal  principles,  and  our 
customs  and  opinions  are  largely  shaped  by  them. 
Indeed,  within  the  last  few  years  we  have  even  dis- 
covered that  vestiges  of  the  village -community  have 
not  been  wholly  effaced  from  our  law,  our  usages,  and 
our  methods  of  tillage. 

The  caution  that  the  sequence  of  these  stages 
does  not  imply  abrupt  transition  from  any  one  to  the 
next  seems  to  me  especially  needed  by  the  student 
of  the  Ancient  Laws  of  Ireland.  Dr.  Sullivan,  of 
whose  Introduction  to  the  lately  published  lectures  of 
O'Curry  I  have  already  spoken,  dwells  with  great 


LECT.  m.        OWNERSHIP  IN  ANCIENT  LRELAND.  88 

emphasis  on  the  existence  *>f  private  property  among 
the  ancient  Irish,  and  on  the  jealousy  with  which  it 
was  guarded.  But  though  it  is  very  natural  that  a 
learned  Irishman,  stung  by  the  levity  which  has 
denied  to  his  ancestors  all  civilised  institutions, 
should  attach  great  importance  to  the  indications  of 
private  ownership  in  the  Brehon  law,  I  must  say 
that  they  do  not,  in  my  judgment,  constitute  its  real 
interest.  The  instructiveness  of  the  Brehon  tracts, 
at  least  to  the  student  of  legal  history,  seems  to  me 
to  arise  from  their  showing  that  institutions  of 
modem  stamp  may  be  in  existence  with  a  number  of 
rules  by  their  side  which  savour  of  another  and  a 
greatly  older  order  of  ideas.  It  cannot  be  doubted, 
I  think,  that  the  primitive  notion  of  kinship,  as  the 
cement  binding  communities  together,  survived 
longer  among  the  Celts  of  Ireland  and  the  Scottish 
Highlands  than  in  any  Western  society,  and  that  it 
is  stamped  on  the  Brehon  law  even  more  clearly  than 
it  is  upon  the  actual  land-law  of  India.  It  is 
perfectly  true  that  the  form  of  private  ownership  in 
land  which  grew  out  of  the  appropriation  of  portions 
of  the  tribal  domain  to  individual  households  of 
tribesmen  is  plainly  recognised  by  the  Brehon 
lawyers;  yet  the  rights  of  private  owners  are 
limited  by  the  controlling  rights  of  a  brotherhood  of 
kinsmen,  and  the  control  is  in  some  respects  even 
more  stringent  than  that  exercised  over  separate 


00  THE   IRISH  FAMILY.  LECT.  m. 

property  by  an  Indian  village-community.  It  is  also 
true  that  another  form  of  ownership  in  land,  that 
which  had  its  origin  in  the  manorial  authority  of  the 
lord  over  the  cultivating  group,  has  also  begun  to 
show  itself;  yet,  though  the  Chief  of  the  Clan  is 
rapidly  climbing  to  a  position  answering  to  the  Lord- 
ship of  a  Manor,  he  has  not  fully  ascended  to  it,  and 
the  most  novel  information  contained  in  the  tracts  is 
that  which  they  supply  concerning  the  process  of 

ascent, 
i 

The  first  instructive  fact  which  strikes  us  on  the 
threshold  of  the  Brehon  law  is,  that  the  same  word, 
'  Fine,'  or  Family,  is  applied  to  all  the  subdivisions  of 
Irish  society.  It  is  used  for  the  Tribe  in  its  largest 
extension  as  pretending  to  some  degree  of  political 
independence,  and  for  all  intermediate  bodies  down 
to  the  Family  as  we  understand  it,  and  even  for 
portions  of  the  Family  (Sullivan,  '  Introduction,' 
clxii.).  It  seems  certain  that  each  of  the  various 
groups  into  which  ancient  Celtic  society  was  divided 
conceived  itself  as  descended  from  some  one  common 
ancestor,  from  whom  the  name,  or  one  of  the  names, 
of  the  entire  body  of  kinsmen  was  derived.  Although 
this  assumption  was  never  in  ancient  Ireland  so 
palpable  a  fiction  as  the  affiliation  of  Greek  races  or 
communities  on  an  heroic  eponymous  progenitor,  it 
was  probably  at  most  true  of  the  Chief  and  hia 
house  so  far  as  regarded  the  Irish  Tribe  taken  as  a 


LECT.  HI.  FAMILIES   AND   PLACES.  91 

political  unit.  But  it  is  probable  that  it  was  occa- 
sionally, and  even  often  true  of  the  smaller  group,  the 
Sept,  sub-Tribe,  or  Joint  Family,  which  appears  to 
me  to  be  the  legal  unit  of  the  Brehon  tracts.  The 
traditions  regarding  the  eponymous  ancestor  of  this 
group  were  distinct  and  apparently  trustworthy,  and 
its  members  were  of  kin  to  one  another  in  virtue  oi 
their  common  descent  from  the  ancestor  who  gave 
his  name  to  all.  The  chief  for  the  time  being  was, 
as  the  Anglo-Irish  judges  called  him  in  the  famous 
4  Case  of  Gavelkind,'  the  caput  cognationis. 

Not  only  was  the  Tribe  or  Sept  named  after  this 
eponymous  ancestor,  but  the  territory  which  it  occu- 
pied also  derived  from  him  the  name  which  was  in 
commonest  use.  I  make  this  remark  chisfly  because 
a  false  inference  has  been  drawn  from  an  assertion 
of  learned  men  concerning  the  connection  between 
names  of  families  and  names  of  places,  which  properly 
understood  is  perfectly  sound.  It  has  been  laid 
down  that,  whenever  a  family  and  place  have  the 
same  name,  it  is  the  place  which  almost  certainly 
gave  its  name  to  the  family.  This  is  no  doubt  true 
of  feudalised  countries,  but  it  is  not  true  of  countries 
as  yet  unaffected  by  feudalism.  It  is  likely  that 
such  names  as  4 O'Brien's  Country'  and  '  Macleod's 
Country '  are  as  old  as  any  appropriation  of  land  by 
man;  and  this  is  worth  remembering  when  we  are 
tempted  to  gauge  the  intelligence  of  an  early  writer 


92  CONSTITUTION   OF   IEISH  TRIBE.  uecr.  in. 

by  the  absurdity  of  his  etymologies.  '  Hibernia ' 
from  an  eponymous  discoverer,  '  Hyber,'  sounds 
ridiculous  enough  :  but  the  chronicler  who  gives  it 
may  have  been  near  enough  the  age  of  tribal  society 
to  think  that  the  connection  between  the  place  and 
the  name  was  the  most  natural  and  probable  he  could 
suggest.  Even  the  most  fanciful  etymologies  of  the 
Greeks,  such  as  Hellespont,  from  Helle,  may  have 
been  '  survivals '  from  a  primitive  tribal  system  of 
naming  places.  In  the  relation  between  names  and 
places,  as  in  much  more  important  matters,  feudalism 
has  singularly  added  to  the  importance  of  land. 

Let  me  now  state  the  impression  which,  partly 
from  the  examination  of  the  translated  texts,  legal 
and  non-legal,  and  partly  by  the  aid  of  Dr.  Sulli- 
van's Introduction,  I  have  formed  of  the  _agrarian 
organisation  of  an  Irish  Tribe.  It  has  been  long 
settled,  in  all  probability,  upon  the  tribal  territory. 
It  is  of  sufficient  size  and  importance  to  constitute  a 
political  unit,  and  possibly  at  its  apex  is  one  of  the  nu- 
merous chieftains  whom  the  Irish  records  call  Kings. 
The  primary  assumption  is  that  the  whole  of  the  tribal 
erritory  belongs  to  the  whole  of  the  tribe,  but  in  fact 
arge  portions  of  it  have  been  permanently  appro- 
riated  to  minor  bodies  of  tribesmen.  A  part  is 
allotted  in  a  special  way  to  the  Chief  as  appurtenant 
to  his  office,  and  descends  from  Chief  to  Chief  accord- 
ing to  a  special  rule  of  succession.  Other  portions  are 


LECT.  m.  CONSTITUTION   OF   IRISH   TRIBE.  »8 

occupied  by  fragments  of  the  tribe,  some  of  which  are 
under  minor  chiefs  or  '  flaiths,'  while  others,  though 
not  strictly  ruled  by  a  chief,  have  somebody  of  a 
noble  class  to  act  as  their  representative.  All  the 
unappropriated  tribe-lands  are  in  a  more  especial  way 
the  property  of  the  tribe  as  a  whole,  and  no  portion 
can  theoretically  be  subjected  to  more  than  a  tempo 
rary  occupation.  Such  occupations  are,  however,  fre- 
quent, and  among  the  holders  of  tribe-land,  on 
these  terms,  are  groups  of  men  calling  themselves 
tribesmen,  but  being  in  reality  associations  formed 
by  contract,  chiefly  for  the  purpose  of  pasturing 
cattle.  Much  of  the  common  tribe-land  is  not  occu- 
pied at  all,  but  constitutes,  to  use  the  English  expres- 
sion, the  '  waste'  of  the  tribe.  Still  this  waste  is 
constantly  brought  under  tillage  or  permanent  pas- 
ture by  settlements  of  tribesmen,  and  upon  it  cul 
tivators  of  servile  status  are  permitted  to  squat,  par 
ticularly  towards  the  border.  It  is  the  part  of  the 
territory  over  which  the  authority  of  the  Chief  tends 
steadily  to  increase,  and  here  it  is  that  he  settles  his 
4  fuidhir/  or  stranger-tenants,  a  very  important  class 
— the  outlaws  and  '  broken '  men  from  other  tribes 
who  come  to  him  for  protection,  and  who  are  only 
connected  with  their  new  tribe  by  their  dependence 
on  its  chief,  and  through  the  responsibility  which  he 
incurs  for  them. 

There  is  probably  great  uniformity  in  the  compo- 


94  UNIFORMITY   OF   GROUPS.  IJSCT.  m 

sition  of  the  various  groups  occupying,  permanently 
or  temporarily,  the  tribal  territory.  Each  seems  to 
be  more  or  less  a  miniature  of  the  large  tribe  which 
includes  them  all.  Each  probably  contains  free- 
men and  slaves,  or  at  all  events  men  varying  mate- 
rially in  personal  status,  yet  each  calls  itself  in  some 
sense  a  family.  Each  very  possibly  has  its  appro- 
priated land  and  its  waste,  and  conducts  tillage  and 
grazing  on  the  same  principles.  Each  is  either 
under  a  Chief  who  really  represents  the  common  an- 
cestor of  all  the  free  kinsmen,  or  under  somebody 
who  has  undertaken  the  responsibilities  devolving 
according  to  primitive  social  idea  upon  the  natural 
head  of  the  kindred.  In  enquiries  of  the  class  upon 
which  we  are  engaged  the  important  fact  which  I 
stated  here  three  years  ago  should  always  be  borne 
in  mind.  When  the  first  English  emigrants  settled 
in  New  England  they  distributed  themselves  in  vil- 
lage communities  ;  so  difficult  is  it  to  strike  out  new 
paths  of  social  life  and  new  routes  of  social  habit. 
It  is  all  but  certain  that,  in  such  a  society  as  that  of 
which  we  are  speaking,  one  single  model  of  social 
organisation  and  social  practice  would  prevail,  and 
none  but  slight  or  insensible  departures  from  it 
would  be  practicable  or  conceivable. 

But  still  the  society  thus  formed  is  not  altogether 
stationary.  The  temporary  occupation  of  the  com- 
mon tribe-land  tends  to  become  permanent,  either 


T.-KCT.  m.  GROUPS   XOT   STATIONARY.  B5 

through  the  tacit  sufferance  or  the  active  ccosent  of 
the  tribesmen.  Particular  families  manage  to  elude 
the  theoretically  periodical  re-division  of  the  common 
patrimony  of  the  group;  others  obtain  allotments 
with  its  consent  as  the  reward  of  service  or  the 
appanage  of  office  ;  and  there  is  a  constant  transfer  of 
lands  to  the  Church,  and  an  intimate  intermixture  of 
tribal  rights  with  ecclesiastical  rights.  The  establish- ' 
ment  of  Property  in  Severalty  is  doubtless  retarded 
both  by  the  abundance  of  land  and  by  the  very  law 
under  which,  to  repeat  the  metaphor  of  the  Indian 
poetess,  the  tribal  society  has  crystallised,  since  each 
family  which  has  appropriated  a  portion  of  tribe-land 
tends  always  to  expand  into  an  extensive  assemblage 
of  tribesmen  having  equal  rights.  But  still  there  is  a 
co-operation  of  causes  always  tending  to  result  in 
Several  Property,  and  the  Brehon  law  shows  that  bv 
the  time  it  was  put  into  shape  they  had  largely 
taken  effect.  As  might  be  expected,  the  severance  of 
land  from  the  common  territory  appears  to  have  been 
most  complete  in  the  case  of  Chiefs,  many  of  whom 
have  large  private  estates  held  under  ordinary  tenure 
in  addition  to  the  demesne  specially  attached  to  their 
signory. 

Such  is  the  picture  of  Irish  tribal  organisation  in 
relation  to  the  land  which  I  have  been  able  to  present 
to  my  own  mind.  All  such  descriptions  must  be 
received  with  reserve :  among  other  reasons,  because 


96  THEORIES   OF   RACE.  LECT.  in. 

even  the  evidence  obtainable  from  the  law-tracts  ia 
still  incomplete.  But  if  the  account  is  in  any  degree 
correct,  all  who  have  attended  to  this  class  of  subjects 
will  observe  at  once  that  the  elements  of  what  we  are 
accustomed  to  consider  the  specially  Germanic  land- 
system  are  present  in  the  territorial  arrangements  of 
the  Irish  tribe.  Doubtless  there  are  material  dis- 
tinctions. Kinship  as  yet,  rather  than  landed  right, 
knits  the  members  of  the  Irish  groups  together.  The 
Chief  is  as  yet  a  very  different  personage  from  the 
Lord  of  the  Manor.  And  there  are  no  signs  as  yet 
even  of  the  beginnings  of  great  towns  and  cities. 
Still  the  assertion,  which  is  the  text  of  Dr.  Sullivan's 
treatise,  may  be  hazarded  without  rashness,  that 
everything  in  the  Germanic  has  at  least  its  embryo 
in  the  Celtic  land  system.  The  study  of  the  Brehon 
law  leads  to  the  same  conclusion  pointed  at  by  so 
many  branches  of  modern  research.  It  conveys  a 
stronger  impression  than  ever  of  a  wide  separation 
between  the  Aryan  race  and  races  of  other  stocks, 
but  it  suggests  that  many,  perhaps  most,  of  the  dif- 
ferences in  kind  alleged  to  exist  between  Aryan  sub- 
races  are  really  differences  merely  in  degree  of 
development.  It  is  to  be  hoped  that  contemporary 
thought  will  before  long  make  an  effort  to  emancipate 
itself  from  those  habits  of  levity  in  adopting  theories 
of  ra:e  which  it  seems  to  have  contracted.  Many  of 


LKCT.  m.  THEORIES   OF   RACE.  97 

these  theories  appear  to  have  little  merit  except  the 
facility  which  they  give  for  building  on  them  infer- 
ences tremendously  out  of  proportion  to  the  mental 
labour  which  they  cost  the  builder. 


«8  TBIBAL   PROPERTY   IN  IRELAND.  UCCT.  iv 


LECTURE  IV. 

THE   TRIBE  AND   THE  LAND. 

IT  has  been  very  commonly  believed  that,  before 
the  agrarian  measures  of  James  the  First,  Ireland  was 
one  of  the  countries  in  which  private  property  in  land 
was  invested  with  least  sacredness,  and  in  which 
forms  of  ownership  generally  considered  as  bar- 
barous most  extensively  prevailed  Spenser  and 
Davis  certainly  suggest  this  opinion,  and  several 
modern  writers  have  adopted  it.  The  Brehon  law- 
tracts  prove,  however,  that  it  can  only  be  received 
with  considerable  qualification  and  modification,  and 
they  show  that  private  property,  and  especially 
private  property  in  land,  had  long  been  known  in 
Ireland  at  the  epoch  to  which  they  belong,  having 
come  into  existence  either  through  the  natural  dis- 
integration of  collective  ownership  or  through  the 
severance  of  particular  estates  from  the  general 
tribal  domain.  Nevertheless  it  cannot,  I  think,  be 
doubted  that  at  the  period  to  which  the  tracts  are 
an  index  much  land  was  held  throughout  Ireland 
under  rules  or  customs  savouring  of  the  ancient 


L 
UBCT.  IT.  TANISTRY   AND    GAVELKIXD.  99 

collective   enjoyment,    and    this   I   understand    Dr. 
Sullivan  to  allow.     (Introduction,  p.  cxliv.) 

Part  of  the  evidence  of  the  fact  just  stated  is 
tolerably  familiar  to  students  of  Irish  history.  At 
the  beginning  of  the  seventeenth  century  the  Anglo- 
Irish  Judges  declared  the  English  Common  Law  to 
be  in  force  throughout  Ireland,  and  from  the  date  of 
this  decision  all  land  in  the  country  descended  to  the 
eldest  son  of  the  last  owner,  unless  its  devolution  was 
otherwise  determined  by  settlement  or  will.  In  Sir 
John  Davis's  report  of  the  case  and  of  the  arguments 
before  the  Court,  it  is  recited  that  hitherto  all  land 
in  Ireland  had  descended  either  under  the  rule  of 
Tanistry  or  under  the  rules  of  Gavelkind.  The 
system  of  inheritance  here  called  Gavelkind  is  thus 
described  ;  When  a  landowning  member  of  an  Irish 
Sept  died,  its  chief  made  a  re -distribution  of  all  the 
lands  of  the  Sept.  He  did  not  divide  the  estate  of 
the  dead  man  among  his  children,  but  used  it  to 
increase  the  allotments  of  the  various  households  of 
which  the  Sept  was  made  up.  The  Judges  treated 
both  Tanistry  and  Gavelkind  as  systems  of  succession 
after  death,  of  a  peculiarly  barbarous  and  mischievous 
kind;  and,  as  systems  of  succession,  I  shall  consider 
them  hereafter.  But  all  systems  of  succession  after 
death  bear  a  close  relation  to  ancient  modes  of  en- 
joyment during  life ;  for  instance,  in  the  Joint  Unii- 

H  -2 


100  IRISH   GAVELKIND.  user.  IT. 

vided  Family  of  the  Hindoos,  the  stirpes,  or  stocks, 
which  are  only  known  to  European  law  as  branches 
of  inheritors,  are  actual  divisions  of  the  family,  and 
live  together  in  distinct  parts  of  the  common  dwelling. 
('Calcutta  Review,'  July  1874,  p.  208.)  The  so- 
called  Irish  Gavelkind  belongs  to  a  class  of  institu- 
tions very  common  in  the  infancy  of  law  ;  it  is  a 
contrivance  for  securing  comparative  equality  among 
the  joint  proprietors  of  a  common  fund.  The  re- 
distribution here  takes  place  at  the  death  of  a  head 
of  a  household;  but  if  equality  were  secured  by  what 
is  practically  the  same  process — viz.,  re-division  after 
a  fixed  period  of  years — an  institution  would  be  pro- 
duced which  has  not  quite  died  out  of  Europe  at  the 
present  moment,  and  of  which  there  are  traditions  in 
all  old  countries.  At  the  same  time  I  have  no  doubt 
that,  when  the  Irish  Gavelkind  was  declared  illegal, 
it  was  very  far  from  being  the  only  system  of  succes- 
jsion  known  to  Ireland  except  Tanistiy,  and  I  think  it 
/probable  that  many  different  modes  of  enjoyment 
and  inheritance  were  abolished  by  the  decision  giving 
the  land  to  the  eldest  son. 

It  was  the  actual  observation  of  peculiar  agricul- 
tural usages,  special  methods  of  cultivation,  and 
abnormal  rules  of  tenure  which  mainly  enabled  G. 
L.  Von  Maurer  to  restore  the  German  Mark  to  know- 
ledge ;  and  it  was  by  using  Von  Maurer's  results  as 
his  key  that  Nasse  was  able  to  decipher  the  scattered 


IECT.  rv.  RUNDALE   HOLDINGS.  101 

references  to  the  'Agricultural  Community  of  the 
Middle  Ages '  in  a  variety  of  English  documents.  I 
venture  to  think  that  this  class  of  observation  has  not 
been  carried  far  enough  in  Ireland  to  yield  material 
for  a  confident  opinion,  but  there  certainly  seem  to 
be  vestiges  of  ancient  collective  enjoyment  in  the 
extensive  prevalence  of  '  rundale '  holdings  in  parts 
of  the  country.  Under  this  system  a  definite  area  of 
land  is  occupied  by  a  group  of  families.  In  the  form 
now  most  common,  the  arable  lands  are  held  in  se- 
veralty,  while  pasture  and  bog  are  in  common.  But 
as  lately  as  fifty  years  since,  cases  were  frequent  in 
which  the  arable  land  was  divided  into  farms  which 
shifted  among  the  tenant-families  periodically,  and 
sometimes  annually.  Even  when  no  such  division 
was  made,  a  well-known  relic  of  the  Mark-system,  as 
it  showed  itself  in  Germany  and  England,  was  occa- 
sionally found :  the  arable  portion  of  the  estates  was 
composed  of  three  different  qualities  of  soil,  and  each 
tenant  had  a  lot  or  lots  in  the  land  of  each  quality, 
without  reference  to  position.  What  was  virtually 
the  same  system  of  tenure  prevailed  quite  recently  in 
the  Scottish  Highlands.  I  have  ascertained  that  the 
families  which  formed  the  village -communities  only 
just  extinct  in  the  Western  Highlands  had  the  lands 
of  the  village  re -distributed  among  them  by  lot  at 
fixed  intervals  of  time;  and  I  gather  from  Mr.  Skene's 
valuable  note  on  '  Tribe  Communities  hi  Scotlan  d ' 


102  OWNERSHIP   AND    OCCUPATION.  LECI    rv. 

(appended  to  the  second  volume  of  his  edition  of 
Fordun's  Chronicle),  that  he  believes  this  system  of 
re -division  to  have  been  once  universal,  or  at  least 
widely  extended,  among  the  Scottish  Celts. 

It  is  to  be  observed  that  (so  far  as  I  am  able  to 
learn)  the  Irish  holdings  in  '  rundale'  are  not  forms  of 
property,  but  modes  of  occupation.  There  is  always 
some  person  above  who  is  legally  owner  of  all  the 
land  held  by  the  group  of  families,  and  who, 
theoretically,  could  change  the  method  of  holding, 
although,  practically,  popular  feeling  would  put  the 
greatest  difficulties  in  his  way.  We  must  bear  in 
mind,  however,  that  archaic  kinds  of  tenancy  are  con- 
stantly evidence  of  ancient  forms  of  proprietorship. 
This  is  so  in  countries  in  which  superior  ownership 
has  arisen  through  the  natural  course  of  events — 
through  purchase  from  small  allodial  proprietors, 
through  colonisation  of  village  waste-lands  become 
in  time  the  lord's  waste,  or  (in  an  earlier  state  of 
society)  through  the  sinking  of  whole  communities  of 
peasants  into  villeinage,  and  through  a  consequent 
transformation  of  the  legal  theory  of  their  rights. 
But  all  this  process  of  change  would  be  gravely  mis- 
construed if  it  were  supposed  that,  because  a  Chief  or 
Lord  had  come  to  be  recognised  as  legal  owner  of 
the  whole  tribal  domain,  or  of  great  portions  of  it,  he 
therefore  altered  the  accustomed  methods  of  occupa- 
tion and  cultivation,  or  (as  some  would  even  seem  to 


MOT.  rv.  THE   COEUS   BESCNA.  103 

think)  he  began  at  once  to  regard  the  occupying 
peasantry  as  modern  lessees  or  modern  tenants  at 
will.  No  doubt  the  ancient  type  of  ownership  long 
served  as  the  model  for  tenancy;  and  the  common 
holdings,  dying  out  as  property,  survived  as  occupa- 
tion. And,  if  this  were  the  case  in  other  countries, 
much  more  would  it  be  so  in  Ireland,  where  property 
has  changed  hands  so  often  and  so  violently ;  where, 
during  whole  centuries,  the  owners  of  land  neither 
regarded,  nor  were  in  a  position  to  regard,  the  occu- 
piers save  as  payers  of  rent  and  dues;  and  where  the 
conception  of  a  landlord  acting  on  his  legal  ownership 
with  a  view  to  improvement  and  increase  of  produc- 
tion is  altogether  modern. 

The  chief  Brehon  law-tract,  which  sets  forth  the 
mutual  rights  of  the  collective  tribe  and  of  individual 
tribesmen  or  households  of  tribesmen  in  respect  of 
tribal  property,  is  called  the  Corns  Bescna,  and  is 
printed  in  the  Third  Volume  of  the  official  edition. 
It  presents  great  difficulties.  I  quite  agree  with  the 
Editors  that  the  commentary  and  glosses  constantly 
contradict  and  obscure  the  text,  either  because  the 
commentators  did  not  understand  it  or  because  they 
belonged  to  a  later  period  and  a  different  stage  of 
legal  relations.  But  the  most  serious  doubt  which 
occurs  to  the  student  of  the  text  arises  from  the 
strong  and  palpable  bias  of  the  compiler  towards  the 
interests  of  the  Church;  indeed,  part  f  the  tract  is 


104  INFLUENCE   OP  THE   CHURCH.  LECT.  IT. 

avowedly  devoted  to  the  law  of  Church  property  and 
of  the  organisation  of  religious  houses.  When  this 
writer  affirms  that,  under  certain  circumstances,  a 
tribesman  may  grant  or  contract  away  tribal  land,  his 
ecclesiastical  leaning  constantly  suggests  a  doubt  as 
to  his  legal  doctrine.  Does  he  mean  to  lay  down  that 
the  land  may  be  parted  with  generally  and  in  favour 
of  anybody,  or  only  that  it  may  be  alienated  in  favour 
of  the  Church?  This  difficulty  of  construction  has 
an  interest  of  its  own.  I  am  myself  persuaded  that 
the  influence  of  the  Christian  Church  on  law  has  been 
very  generally  sought  for  in  a  wrong  quarter,  and 
/that  historians  of  law  have  too  much  overlooked  its 
share  in  diffusing  the  conceptions  of  free  contract, 
/  individual  property,  and  testamentary  succession, 
through  the  regions  beyond  the  Roman  Empire 
which  were  peopled  by  communities  held  together  by 
the  primitive  tie  of  consanguinity.  It  is  generally 
agreed  among  scholars  that  Churchmen  introduced 
these  races  to  wills  and  bequests ;  the  Brehon  tracts 
suggest  to  me  at  least  that,  along  with  the  sacredness 
of  bequests,  they  insisted  upon  the  sacredness  of  con- 
tracts ;  and  it  is  well  known  that,  in  the  Germanic 
countries,  their  ecclesiastical  societies  were  among  the 
earliest  and  largest  grantees  of  public  or  '  folk ' 
land  (Stubbs,  '  Constitutional  History,'  vol.  i.  p.  154). 
The  Will,  the  Contract,  and  the  Separate  Ownership, 
were  in  fact  indispensable  to  the  Church  as  the  donee 


tfxn.  iv.  THE   c  FIXE '  THE  SETT.  106 

of  pious  gifts;  and  they  were  also  essential  and  char- 
acteristic elements  in  the  civilisation  amid  which  the 
Church  had  been  reared  to  maturity.  It  is  possible 
that  the  compiler  of  the  Corus  Bescna  may  have  been 
an  ecclesiastic,  as  he  certainly  would  have  been  in  any 
society  except  the  Irish ;  but,  if  he  were  a  lawyer,  he 
writes  as  a  lawyer  would  state  the  case  on  behalf  of  a 
favourite  and  important  client.  Let  me  add  that  all 
the  Brehon  writers  seem  to  me  to  have  a  bias  towards 
private  or  several,  as  distinguished  from  collective, 
property.  No  doubt  it  was  then,  as  always,  the  great 
source  of  legal  business,  and  it  may  have  seemed  to 
them,  and  it  possibly  was,  the  index  to  such  advance 
in  civilisation  as  their  country  was  capable  of 
making. 

My  own  strong  opinion  is  that  the  *  Fine,'  whose 
rights  and   powers  are  the  principal  theme  of  the 
Corus  Bescna,  and  whose  name  the  translators  render 
'  Tribe,'  is  neither  the  Tribe  in  its  largest  extension, 
nor,  on  the  other  hand,  the  modern  Family  or  group 
of  descendants  from  a  living  ancestor,  but  the  Sept. 
It  is  a  body  of  kinsmen  whose  progenitor  is  no  longer 
living,  but  whose  descent  from  him  is  a  reality,  and 
neither  a  myth  nor  a  fiction.     It  is  the  Joint  Family  i 
of  the   Hindoos,  but  with  the  characteristics  of  that  \, 
group  considerably  modified  through  settlement  on  l; 
the  land.     This  peculiar  assemblage  or  corporation 
of  blood-relatives,  which  has  been  referred  to  by  me 


10G  THE   JOINT  UNDIVIDED   FAMILY.  LF,CT.  rv. 

several  -times  before,  is  formed  by  the  continuance 
of  the  family  union  through  several,  and  it  may  be 
through  an  indefinite  number  of  generations.  The 
rule  throughout  most  of  the  civilised  world  is  that, 
for  all  purposes  of  law,  families  are  broken  up  into 
individuals  or  dissolved  into  a  number  of  new  families 
by  the  death  of  their  head.  But  this  is  not  necessarily 
the  case.  The  group  made  up  of  those  whom,  we 
vaguely  call  our  relatives — of  our  brothers,  nephews, 
great-uncles,  uncles,  and  cousins,  no  less  than  those 
related  to  us  in  the  ascending  and  descending  lines — 
might  very  well,  after  any  number  of  deaths,  remain 
knitted  together  not  only  by  blood  and  affection,  but 
by  mutual  rights  and  duties  prescribed  or  sanctioned 
by  the  law.  An  association  of  this  sort  is  well  known 
to  the  law  of  India  as  the  Joint  Undivided  Family,  or, 
to  give  the  technical  description,  the  Family,  'joint  in 
food,  worship,  and  estate.'  If  a  Hindoo  has  become 
the  root  of  a  family  it  is  not  necessarily  separated 
by  his  death  ;  his  children  continue  united  for 
legal  purposes  as  a  corporate  brotherhood,  and 
some  definite  act  of  one  or  more  of  the  brethren  is 
required  to  effect  a  dissolution  of  the  plexus  of  mutual 
rights  and  a  partition  of  the  family  property.  The 
family  thus  formed  by  the  continuance  of  several 
generations  in  union  is  identical  in  outline  with  a 
group  very  familiar  to  the  students  of  the  older 
Koman  law — the  Agnatic  Kindred.  The  Agnates 


user.  IT.        THE   TRIBE    OF   THE   BEEHON   TRACTS.  107 

•were  that  assemblage  of  persons  who  would  have  been 
under  the  patriarchal  authority  of  some  common  an- 
cestor, if  he  had  lived  long  enough  to  exercise  it.  The 
Joint  Family  of  the  Hindoos  is  that  assemblage  of 
persons  who  would  have  joined  in  the  sacrifices  at 
the  funeral  of  some  common  ancestor,  if  he  had  died 
in  their  lifetime.  In  the  last  case  the  sacerdotal 
point  of  view  merely  takes  the  place  of  the  legal  or 
civil. 

So  far  as  we  are  able,  amid  the  disadvantages 
under  which  we  are  placed  by  the  obscurity  of  our 
authorities,  let  us  examine  the  legal  qualities  which 
the  ancient  Irish  law  attributes  to  this  brotherhood 
of  kinsmen  as  it  was  found  in  Ireland.  First  of 
all,  the  '  Tribe '  of  the  Brehon  tracts  is  a  corporate, 
organic,  self-sustaining  unit.  '  The  Tribe  sustains 
itself.'  ('Ancient  Laws  of  Ireland,'  ii.  283.)  Its 
continuity  has  begun  to  depend  on  the  land  which  it 
occupies — '  land,'  says  one  of  the  still  unpublished 
tracts,  *  is  perpetual  man ' — but  it  is  not  a  purely 
land-owning  body ;  it  has  '  live  chattels  and  dead 
chattels,'  distinguished  from  those  of  individual  tribes- 
men. ('  Ancient  Laws  of  Ireland,'  ii.  289.)  Nor  is  it 
a  purely  cultivating  body;  it  may  follow  a  pro- 
fessional calling.  (Ibid.,  iii.  49-51.)  A  portion  of 
the  tribal  domain,  probably  the  arable  and  choice 
pasture  lands,  has  been  allotted  to  separate  households 
of  tribesmen,  but  they  hold  their  allotments  subject 


108  ALIENATION   OF  TRIBE   LAND.  1TOT.  IV. 

to  the  controlling  rights  of  the  entire  brotherhood, 
and  the  primary  or  fundamental  rule  is  that  they  are 
to  keep  their  shares  of  tribe-land  intact.  '  Every 
tribesman  is  able  to  keep  his  tribe-land  ;  he  is  not  to 
sell  it  or  alienate  or  conceal  it,  or  give  it  to  pay  for 
crimes  or  contracts.'  ('Ancient  Laws  of  Ireland,'  ii. 
283.)  *  No  person  should  leave  a  rent  upon  his  land 
or  upon  his  tribe  which  he  did  not  find  upon  it.' 
(Ibid.,  iii.  52,  53.)  '  Everyone  is  wealthy  who  keeps 
his  tribe -land  perfect  as  he  got  it,  who  does  not  leave 
greater  debt  upon  it  than  he  found  on  it.'  (Ibid., 
iii.  55.) 

Under  certain  circumstances  the  tribesman  may 
alienate,  by  grant,  contract,  or  bequest,  a  certain 
quantity  of  the  tribe-land  allotted  to  him ;  but  what 
are  the  circumstances,  and  what  the  quantity,  are 
points  on  which  we  cannot  venture  to  make  any 
precise  statement,  so  obscure  and  contradictory  are 
the  rules  set  forth.  But  the  grantee  primarily  con- 
templated is  certainly  the  Church,  though  it  seerns 
clear  that  there  is  a  general  power  of  alienation,  either 
with  the  consent  of  the  entire  tribal  brotherhood  or 
under  pressure  of  strong  necessity.  It  further  appears 
to  be  beyond  question  that  the  tribesman  has  consider- 
ably greater  power  of  disposition  over  property  which 
he  has  acquired  than  over  property  which  has  devolved 
on  him  as  a  member  of  a  tribe,  and  that  he  has  more 
power  over  acquisitions  made  by  his  own  unaided 


.  IT.  ALIENATION  OF   TRIBE   LAND.  109 

industry  than  over  acquisitions  made  through  profits 
arising  from  the  cultivation  of  tribal  land.     '  No  per- 
son should  grant  land  except  such  as  he  has  purchased  \' '' 
himself,  unless  by  the  common  consent  of  the  tribe.'/'    '/" 

•>  \&\C4* 

('Ancient  Laws  of  Ireland,'  iii.  52,  53.)  4  He  who 
has  not  sold  or  bought  (i.e.,  he  who  keeps  his  tribe- 
land  as  he  obtained  it)  is  allowed  to  make  grants, 
each  according  to  his  dignity  (i.e.,  as  the  commentator 
explains,  to  the  extent  of  one-third  or  one-half  of  his 
tribe-land).'  '  He  who  neither  sells  nor  purchases 
may  give  as  far  as  the  third  of  his  tribe-share  in  case 
of  little  necessity  and  one-half  in  case  of  great  neces- 
sity.' ('  Ancient  Laws  of  Ireland,'  iii.  47.)  '  If  it  be  /  /  j{7  |  ?i 
land  that  acquires  it,  it  is  one-half ;  ...  if  he  be  a 
professional  man,  it  is  two-thirds  of  his  contracts ' 
(iii.  49). 

The  distinction  between  acquired  property  and 
property  inherited  or  received  from  kinsmen,  and 
the  enlarged  power  of  parting  with  the  first,  are 
found  hi  many  bodies  of  ancient  law — in  our  own 
early  law  among  others.  The  rule  that  alienations, 
otherwise  unlawful,  may  be  made  under  pressure  of 
necessity,  is  found  in  many  parts  of  Hindoo  law. 
The  rule  requiring  the  consent  of  the  collective 
brotherhood  to  alienations,  with  many  minor  rules 
of  this  part  of  Brehon  law,  constantly  forms  part  of 
the  customs  of  Indian  and  Russian  village-communi- 
ties ;  and  the  duty  of  following  common  practices  of 


4 

fi 


•ff^r-f 


£'W 


110  PROFESSIONAL   TRIBES.  LECT.  :v, 

tillage,  which  is  the  bequest  from  these  communities 
which  lasted  longest  in  the  Germanic  countries,  is 
classed  by  the  Corus  Bescna,  along  with  Marriage, 
as  one  of  the  fundamental  institutions  of  the  Irish 
people.  ('Ancient  Laws  of  Ireland,' iii.  17.)  But 
much  the  most  striking  and  unexpected  analogies  in 
the  Brehon  law  on  the  subject  of  Tribesmen  and  the 
Tribe  are  those  which  it  has  with  the  Hindoo  law  of 
Joint  Undivided  Families.  Under  the  Brahminical 
Indian  law,  whenever  a  member  of  a  joint  family  has 
acquired  property  through  special  scientific  know- 
ledge or  the  practice  of  a  liberal  art,  he  does  not 
bring  it  into  the  common  fund,  unless  his  accomplish- 
ments were  obtained  through  a  training  given  to  him 
I  by  his  family  or  at  their  expense.  The  whole  law  on 
the  subject  was  much  considered  in  a  strange  case 
which  arose  before  the  High  Court  of  Madras 
('  Madras  High  Court  Reports,'  ii.  56),  where  a  joint 
family  claimed  the  gains  of  a  dancing-girl.  The  de- 
cision of  the  Court  is  thus  summarised  by  the  Re- 
porter :  '  The  ordinary  gains  of  science  are  divisible 
(i.e.,  they  are  brought  into  hotchpot  upon  partition  of 
an  undivided  estate),  when  such  science  has  been 
imparted  at  the  family  expense  and  acquired  while 
receiving  a  family  maintenance.  It  is  otherwise 
when  the  science  has  been  imparted  at  the  expense 
of  persons  not  members  of  the  learner's  family.'  The 
very  counterparts  of  the  Indian  rule  and  of  the  Indian 


IT.        THE   TllIBE   AND    THE   JOINT   FAMILY.  Ill 

exception  are  found  in  the  ancient  Irish  law.  '  If 
(the  tribesman)  be  a  professional  man — that  is,  if  the 
property  be  acquired  by  judicature  or  poetry,  or  any 
profession  whatsoever — he  is  capable  of  giving  two- 
thirds  of  it  to  the  Church  .  .  .  but,  if  it  was  the 
lawful  profession  of  his  tribe,  he  shall  not  give  of 
the  emolument  of  his  profession  but  just  as  he  could 
give  of  the  land  of  his  tribe.'  (Corus  Bescna, '  Ancient 
Laws  of  Ireland,'  iii.  5.) 

It  will  be  seen  from  the  instances  which  I  have 
given  that  the  rules  of  the  Irish  Brehon  law  regulating 
the  power  of  individual  tribesmen  to  alienate  their 
separate  property  answer  to  the  rules  of  Indian 
Brahminical  law  which  regulate  the  power  of  indi- 
vidual members  of  a  joint  family  to  enjoy  separate 
property.  The  difference  is  material.  The  Hindoo 
law  assumes  that  collective  enjoyment  by  the  whole 
brotherhood  is  the  rule,  and  it  treats  the  enjoyment 
of  separate  property  by  individual  brethren  as  an 
exception — an  exception,  I  may  add,  round  which  an 
enormous  mass  of  law  has  now  clustered.  On  the 
other  hand,  the  Brehon  law,  so  far  as  it  can  be  un- 
derstood, seems  to  me  recbncileable  with  no  other 
assumption  than  that  individual  proprietary  rights 
have  grown  up  and  attained  some  stability  within 
the  circle  of  the  tribe.  The  exercise  of  these  rights 
is  at  the  same  time  limited  by  the  controlling  powers 
of  the  collective  brotherhood  of  tribesmen;  and  to 


112  IRISH  CO-TENANCY.  LECT.  TV, 

these  last,  as  to  the  Agnatic  Kindred  at  Rome,  some 
ultimate  right  of  succession  appears  to  be  reserved. 
Hence  the  Irish  legal  unit  is  not  precisely  a  Joint 
Family;  if  the  Brehon  law  is  to  be  trusted,  it  has 
•onsiderably  less  of  the  '  natural  communism '  which 
characterises  the  Indian  institution.  The  *  Fine  '  of 
the  tracts  is  constantly  spoken  of  in  connection  with 
landed  property,  and,  whenever  it  is  so  connected,  I 
imagine  it  to  have  undergone  some  of  the  changes 
which  are  constantly  brought  about  by  contact  with 
the  land,  and  I  figure  it  to  myself  in  that  case  as 
a  Mark  or  Village-Community,  in  which  the  ideas 
proper  to  the  older  group  out  of  which  it  grew,  the 
Joint  Family,  have  survived  in  exceptional  strength. 
It  in  this  respect  approaches  the  Russian  rather  than 
the  Indian  type  of  village- community. 

The   'Judgments  of  Co-Tenancy'  is  a  Brehon 
law-tract,  still  unpublished  at  the  time  at  which  I 
write,  and  presenting,  in  its  present  state,  consider- 
able difficulties  of  interpretation.     It   puts,  at  the 
outset,    the    question, — '  Whence    does    Co-Tenancy 
'  arise?'     The  answer  given  is,  'From  several  heirs 
•and  from  their  increasing  on  the  land.'     The  tract 
/then  goes  on  to  explain  that  the  land  is,  in  the  first 
lyear,  to  be  tilled  by  the  kinsmen  just  as  each  pleases; 
*that  in  the  second  year  they  are  to  exchange  lots; 
jthat   in   the   third   year  the   boundaries   are  to   be 
fixed;  and  that  the  whole  process  of  severance  is  to 


LECT.  IT.    STAGES  IN  HISTORY  OF  CULTIVATING  GROUPS.      113 

be  consummated  in  the  tenth  year.  I  trust  it  is 
not  a  presumptuous  conjecture  that  the  order  of 
change  here  indicated  is  more  trustworthy  than  the 
time  fixed  for  each  of  its  stages.  The  period  of 
ten  years  for  the  entire  transition  from  collective  to 
separate  property  seems  to  me  greatly  too  short,  and 
hard  to  reconcile  with  other  Irish  evidence ;  and  I 
suggest  that  the  Brehon  lawyer,  attached  to  the 
institution  of  separate  property,  like  the  rest  of  his 
class,  is  depicting  rather  an  ideal  than  an  actual  set 
of  arrangements.  The  process,  however,  which  is 
here  described,  if  it  be  spread  over  a  much  longer 
space  of  tune,  is  really  in  harmony  with  all  our  s 
knowledge  of  the  rise  and  progress  of  cultivating 
communities.  First  a  Joint  Family,  composed  of  '  se- 
veral heirs  increasing  on  the  land,'  is  found  to  have 
made  a  settlement.  In  the  earliest  stage  the  various 
households  reclaim  the  land  without  set  rule.  Next 
comes  the  system  of  exchanging  lots.  Finally,  the 
portions  of  land  are  enjoyed  in  severalty. 

The  references  to  the  ancient  collective  owner- 
ship and  ancient  collective  enjoyment  in  the  non- 
legal  Irish  literature  appear  to  be  very  rare.  But  my 
friend  Mr.  Whitley  Stokes  has  supplied  me  with  two 
passages  in  point.  The  *  Liber  Hymnorum,'  attri- 
buted to  the  eleventh  century,  contains  (folio  5 A)  the 
following  statement :  '  Numerous  were  the  human 
beings  in  Ireland  at  that  time  (i.e.  the  time  of  the 

I 


114 


PERIODICAL   ALLOTMENTS   IN   IRELAND.       LECT.  IT. 


ft*  )>  11. 


I 


eons  of  Aed  Slane,  A.D.  658-694),  and  such  was  their 
number  that  they  used  not  to  get  but  thrice  nine 
ridges  for  each  man  in  Ireland,  to  wit,  nine  of  bog, 
and  nine  of  smooth  (arable),  and  nine  of  wood.' 
Another  Irish  manuscript,  believed  to  date  from  the 
twelfth  century,  the  *  Lebor  na  Huidre,'  says  that 
'there  was  not  ditch,  nor  fence,  nor  stone-wall 
round  land,  till  came  the  period  of  the  sons  of  Aed 
Slane,  but  (only)  smooth  fields.  Because  of  the 
abundance  of  the  households  in  their  period,  there- 
fore it  is  that  they  introduced  boundaries  in  Ireland.' 
These  curious  statements  can,  of  course,  only  be 
regarded  as  authority  for  the  existence,  at  the  time 
when  they  were  penned,  of  a  belief  that  a  change 
from  a  system  of  collective  to  a  system  of  restricted 
enjoyment  had  occurred  at  some  period  or  other  in 
Ireland,  and  of  a  tradition  respecting  the  date  of  the 
change.  But  it  is  instructive  to  find  both  of  them 
attributing  it  to  the  growth  of  population,  and  an 
especial  interest  attaches  to  the  account  given  in  the 
1  Liber  Hymnorum '  of  the  newer  distribution  of 
land  which  was  thought  to  have  taken  the  place  of 
something  older.  The  periodical  allotment  to  each 
household  of  a  definite  portion  of  bog  land,  wood 
land,  and  arable  land  wears  a  strong  resemblance  to 
the  apportionment  of  pasture  and  wood  and  arable 
land  which  still  goes  on  in  our  day  under  the  com- 
munal rules  of  the  Swiss  Allmenden  (see  Laveleye, 


U3CT.  rv.      DOUBLE   ORIGIN   OF   LAKDED    PROPERTY.  Ill 

'  P.  et  s.  F.  P.,'  pp.  268  et  seq.),  and  which  is  ar,  un- 
doubted legacy  from  the  ancient  constitution  of  cer- 
tain Swiss  Cantons  as  Teutonic  Hundreds. 

Property  in  Land,  wherever  it  has  grown  out  of 
the  gradual  dissolution  of  the  ancient  cultivating 
communities,  has  many  characteristics  which  distin- 
guish it  from  the  form  of  landed  property  with  which 
Englishmen  and  men  of  English  race  are  best  ac- 
quainted. The  area  within  which  this  last  form  of 
property  is  the  sole  or  dominant  kind  of  ownership 
is  now  much  larger  than  it  was,  through  its  diffusion 
over  all  North  America,  except  Mexico,  and  over  all 
colonies  settled  for  the  first  time  by  Englishmen, 
but  our  nearly  exclusive  familiarity  with  it  has  led,  I 
think,  to  our  very  commonly  over-estimating  the  ex- 
tent to  which  it  prevails  over  the  world,  and  even  over 
Western  Europe.  Its  parentage  may  be  traced,  not  to 
the  decaying  authority  of  the  Tribe  over  the  several- 
ties  of  the  tribesmen,  but  to  the  ever-increasing 

'  O 

authority  of  the  Chief,  first  over  his  own  domain  and 
'  booked  '  land,  and  secondarily  over  the  tribe-lands. 
The  early  growth  of  the  power  of  the  Chief  is  thus  of 
the  utmost  interest  in  the  history  of  landed  property, 
and  I  propose  to  discuss  it  at  some  length  in  the  suc- 
ceeding Lectures.  Meantime,  let  me  say  something 
on  the  transmutations  which  Patriarchal  Power  is 
observed,  as  a  fact,  to  undergo  in  the  assemblages  of 

12 


116       EXPANSION   OF  THE  PATRIARCHAL   FAMILY.     LBCT.  IT. 

men  held  together  by  kinship  which  are  still  found 
making  a  part  of  Aryan  communities. 

The  Joint  Undivided  Family,  wherever  its  be- 
ginning is  seen  in  such  communities,  springs  univer- 
sally out  of  the  Patriarchal  Family,  a  group  of  natural 
or  adoptive  descendants  held  together  by  subjection 
to  the  eldest  living  ascendant,  father,  grandfather,  or 
great-grandfather.  Whatever  be  the  formal  prescrip- 
tions of  the  law,  the  head  of  such  a  group  is  always 
in  practice  despotic,  and  he  is  the  object  of  a  respect, 
if  not  always  of  an  affection,  which  is  probably  seated 
deeper  than  any  positive  institution.  But  in  the 
more  extensive  assemblages  of  kinsmen  which,  consti- 
tute the  Joint  Family  the  eldest  male  of  the  eldest 
line  is  never  the  parent  of  all  the  members,  and  not 
necessarily  the  first  in  age  among  them.  To  many 
of  them  he  is  merely  a  distant  relative,  and  he  may 
possibly  be  an  infant.  The  sense  of  patriarchal  right 
does  not  die  out  in  such  groups.  Each  father  or  grand- 
father has  more  power  than  anybody  else  over  his  wife, 
children,  and  descendants ;  and  there  is  always  what 
may  be  called  a  belief  that  the  blood  of  the  collective 
brotherhood  runs  more  truly  and  purely  in  some  one 
line  than  in  any  other.  Among  the  Hindoos,  the  eldest 
male  of  this  line,  if  of  full  mental  capacity,  is  gene- 
rally placed  at  the  head  of  the  concerns  of  the  joint 
family ;  but  where  the  institution  survives  in  any 
completeness,  he  is  not  a  Paterfamilias,  nor  is  he 


.  IV.         ELECTIVE   HEADSHIP  OF  FAMILIES.  117 

owner  of  the  family  property,  but  merely  manager 
of  its  affairs  and  administrator  of  its  possessions.  If 
he  is  not  deemed  fit  for  his  duties,  a  c  worthier '  kins- 
man is  substituted  for  him  by  election,  and,  hi  fact, 
the  longer  the  joint  family  holds  together,  the  more 
election  gains  ground  at  the  expense  of  birth.  The 
head  or  manager  of  the  Sclavonic  House-Communities 
(which,  however,  are  much  more  artificial  than  the 
Hindoo  Joint  Families)  is  undisguisedly  an  elective 
representative,  and  in  some  of  our  examples  a 
council  of  kinsmen  belonging  to  the  eldest  line  of 
descent  takes  the  place  of  an  individual  administrator. 
The  whole  process  I  will  describe  as  the  gradual 
transmutation  of  the  Patriarch  into  the  Chief. 
The  general  rule  is  that  the  Chief  is  elected,  with  a 
strong  preference  for  the  eldest  line.  Sometimes  he 
is  assisted  by  a  definite  council  of  near  kinsmen, 
and  sometimes  this  council  takes  his  place.  On  the 
whole,  where  the  body  of  kinsmen  formed  on  the  type 
of  the  Joint  Family  is  a  purely  civil  institution,  the 
tendency  is  towards  greater  disregard  of  the  claims 
of  blood.  But  in  those  states  of  society  in  which  the 
brotherhood  is  not  merely  a  civil  confraternity,  but  a 
political,  militant,  self-sustaining  group,  we  can  per- 
ceive from  actually  extant  examples  that  a  separate 
set  of  causes  come  into  operation,  and  that  the  Chief, 
as  military  leader,  sometimes  more  than  regains  the 
privileges  which  he  lost  through  the  decay  of  the 


118  EEVIVAL  OF  PATRIA  POTESTAS.  LECT.  IT 

tradition  which  connected  him  with  the  common 
root  of  all  the  kindred.  True  patriarchal  authority, 
however,  revives  whenever  the  process  of  expansion 
into  a  group  is  interrupted  and  whenever  one  of  the 
brotherhood  plants  himself  at  a  distance  from  the  rest. 
A  Hindoo  who  severs  himself  from  a  Joint  Family, 
which  the  law  as  administered  by  the  English  tribu- 
nals gives  him  great  facilities  for  doing,  acquires 
much  greater  power  over  his  family,  in  our  sense  of 
the  word,  than  he  had  as  a  member  of  the  larger 
brotherhood.  Similarly,  in  the  developed  Joint 
Family  or  Village-Community,  as  the  little  society 
becomes  more  populous,  as  the  village  spreads,  as  the 
practice  of  living  in  separate  dwellings  extends,  as  the 
land  rather  than,  the  common  lineage  gets  to  be  re- 
garded as  the  cement  of  the  brotherhood,  each  man 
in  his  own  house  practically  obtains  stringent  patri- 
archal authority  over  his  wife,  children,  and  servants. 
But  then,  on  the  other  hand,  the  separated  member 
of  the  joint  family,  or  the  head  of  the  village  house- 
hold, will  himself  become  the  root  of  a  new  joint 
brotherhood,  unless  his  children  voluntarily  dissolve 
t^ie  family  union  after  his  death.  Thus  all  the 
branches  of  human  society  may  or  may  not  have 
been  developed  from  joint  families  which  arose  out  of 
an  original  patriarchal  cell ;  but,  wherever  the  Joint 
Family  is  an  institution  of  an  Aryan  iace,  we  see  it 
springing  from  such  a  cell,  and,  when  it  dissolves,  we 
see  it  dissolving  into  a  number  of  such  cells. 


LBCI    r         DOUBLE   ORIGIX   OF   LANDED    PROPERTY. 


LECTURE  V. 

THE    CHIEF   AND   HIS   ORDER. 

NOTHING  seems  to  me  to  have  been  more  clearly 
shown  by  recent  researches  than  the  necessity  of 
keeping  apart  the  Tribe  and  the  Tribal  Chief  as  dis- 
tinct sources  of  positive  institutions.  The  lines  of 
descent  are  constantly  entwined,  but  each  of  them  is 
found  to  run  up  in  the  end  to  an  independent  origin. 
If  I  were  to  apply  this  assertion  to  political  history, 
I  should  be  only  repeating  much  of  what  has  been 
said  by  Mr.  Freeman  in  his  excellent  work  on  '  Com- 
parative Politics.'  Confining  myself  to  the  history 
of  private  institutions,  let  me  observe  that  the  dis- 
tinction which  I  have  drawn  should  be  carefully 
borne  in  mind  by  those  who  desire  to  penetrate  to 
the  beginnings  of  Property  in  Land.  The  subject  has 
been  greatly  obscured  by  the  practice,  now  brought 
home  to  the  early  writers  on  feudal  law,  of  syste- 
matically passing  over  or  misconstruing  all  forms  of 
proprietary  enjoyment  which  they  could  not  explain 
on  their  own  principles  ;  and  hitherto  the  truth  has 
only  been  directly  seen  through  some  of  the  rules  of 


120  DOUBLE   ORIGIN   OF  LANDED   PROPERTY.       LBCT.  T. 

tenure.  It  may  now,  however,  be  laid  down  without 
rashness  that  Property  in  Land,  as  known  to  coramu 
nities  of  the  Aryan  race,  has  had  a  twofold  origin. 
It  has  arisen  partly  from  the  disentanglement  of  the 
individual  rights  of  the  kindred  or  tribesmen  from  the 
collective  rights  of  the  Family  or  Tribe,  and  partly 
from  the  growth  and  transmutation  of  the  sovereignty 
of  the  Tribal  Chief.  The  phenomena  attributable  to 
the  double  process  seem  to  me  easily  distinguishable 
from  one  another.  Both  the  sovereignty  of  the  Chief 
and  the  ownership  of  land  by  the  Family  or  Tribe 
were  in  most  of  Western  Europe  passed  through  the 
crucible  of  feudalism  ;  but  the  first  reappeared  in 
some  well-marked  characteristics  of  military  or 
knightly  tenures,  and  the  last  in  the  principal  rules 
of  non-noble  holdings,  and  among  them  of  Socage,  the 
distinctive  tenure  of  the  free  farmer.  The  status  of 
the  Chief  has  thus  left  us  one  bequest  in  the  rule  of 
Primogeniture,  which,  however,  has  long  lost  its  most 
ancient  form ;  another  in  the  right  to  receive  certain 
dues  and  to  enforce  certain  monopolies ;  and  a  third 
in  a  specially  absolute  form  of  property  which  was 
once  exclusively  enjoyed  by  the  Chief,  and  after  him 
by  the  Lord,  in  the  portion  of  the  tribal  territory 
which  formed  his  own  domain.  On  the  other  hand, 
several  systems  of  succession  after  death,  and  among 
them  the  equal  division  of  the  land  between  the  chil- 
dren, have  sprung  out  of  tribal  ownership  in  various 


LECT.  v.      TWO   FCflilS   OF   PROPERTY   IN  FRANCE.  121 

stages  of  decay  ;  and  it  has  left  another  set  of  traces 
(not  quite  so  widely  extended),  in  a  number  of  minute 
customary  rules  which  govern  tillage  and  occasionally 
regulate  the  distribution  of  the  produce. 

The  fate  of  this  double  set  of  institutions  in  Eng- 
land and  in  France  appears  to  me  most  instructive.  I 
have  frequently  dwelt  in  this  place  on  the  erroneousness 
of  the  vulgar  opinion  which  dates  the  extreme  subdivi- 
sion of  the  soil  of  France  from  the  first  French  Revo- 
lution, and  from  the  sale  of  the  Church  lands  and  of 
the  estates  of  the  emigrant  nobility.  A  writer — I 
was  going  to  say  as  commonly  read  as  Arthur  Young, 
but  certainly  as  often  mentioned  as  if  he  were  com- 
monly read — notices  this  morcellement,  on  the  very 
eve  of  the  French  Revolution,  and  immediately  after 
it,  as  the  great  feature  which  distinguished  France 
from  England.  *  From  what  we  see  in  England,'  he 
says,  ('Travels  in  1787,  '88,  and '89,' p. 407)  'we can- 
not form  an  idea  of  the  abundance  in  France  of  small 
properties,  that  is,  little  farms  belonging  to  those  who 
cultivate  them.'  He  estimates  that  more  than  a  third 
of  the  kingdom  was  occupied  by  them — a  very  large 
proportion,  when  the  extent  of  Church  land  in  France 
is  taken  into  account;  but  recent  French  investiga- 
tions have  shown  reasons  for  thinking  that  the  true 
proportion  was  still  larger,  and  that  it  was  rather 
growing  than  diminishing,  through  that  extravagance 
of  the  nobles  which  Court  life  fostered,  and  which 


122  PBIMOGENITURE  AND   EQUAL  DIVISION.        LECT.  T, 

compelled  them  to  sell  their  domains  to  peasants  in 
small  parcels.  Young  clearly  saw  that  this  subdivi- 
sion of  the  soil  was  the  result  of  some  legal  rule ;  and 
strongly  dissenting  from  the  Revolutionary  leaders 
who  wished  to  carry  it  farther,  he  declared  that 
1  a  law  ought  to  be  passed  to  render  all  division  below 
a  certain  number  of  arpents  illegal/ 

It  seems  to  have  very  generally  escaped  notice 
\j  that  the  law  of  equal  or  nearly  equal  division 
after  death  was  the  general  law  of  France.  The 
rule  of  primogeniture  was  of  exceptional  appli- 
cation, and  was  for  the  most  part  confined  to  lands 
held  by  knightly  tenure ;  indeed,  in  the  South 
of  France,  where  the  custom  of  equal  division  was 
strengthened  by  the  identical  rule  of  the  Roman  juris- 
prudence, the  privileges  of  the  eldest  son  were  only 
secured  by  calling  in  the  exceptional  rules  of  which 
the  Roman  Law  gives  the  benefit  to  milites  (or 
soldiers  on  service)  when  making  their  wills  or  regu- 
lating their  successions,  and  by  laying  down  that 
every  chevalier,  and  every  noble  of  higher  degree, 
was  a  miles  within  the  meaning  of  the  Roman  juridi- 
cal writers.  The  two  systems  of  succession  and  the 
two  forms  of  property  lay  side  by  side,  and  there 
were  men  alive  quite  recently  who  could  remember 
the  bitter  animosities  caused  by  their  co-existence 
and  antagonism.  A  very  great  part  of  the  land  held 
by  laymen  belonged  to  the  peasantry,  ard  descended 


I.BCT.  T.  SIGNORIAL   DUES.  123 

according  to  the  rule  of  equal  division,  but  eldest  son 
after  eldest  son  succeeded  to  the  signory.  Yet  it 
was  not  the  rule  of  primogeniture  followed  in  noble 
descents  which  was  the  true  grievance  ;  at  most  it 
became  a  grievance  under  the  influence  of  the  peculiar 
vein  of  sentiment  introduced  by  Rousseau.  The 
legacy  from  tribal  sovereignty  to  signorial  privilege, 
which  was  really  resented,  was  that  which  I  placed 
second  in  order.  The  right  to  receive  feudal  dues 
and  to  enforce  petty  monopolies,  now  almost  extin- 
guished in  England  by  the  measures  to  which  the 
Copyhold  Commission  has  given  effect,  had  ceased  long 
before  the  end  of  the  last  century  to  be  of  any  consi- 
derable importance  to  the  class  which  was  invested 
with  it ;  but  M.  de  Tocqueville  has  explained,  in  his 
'  Ancien  Regime'  (i.  18),  that  it  made  up  almost  the 
entire  means  of  living  which  the  majority  of  the 
French  nobility  possessed.  A  certain  number  of 
noblemen,  besides  their  feudal  rights,  had  their  terres, 
or  domain,  belonging  to  them  in  absolute  property,  and 
sometimes  of  enormous  extent ;  and  the  wealthiest 
members  of  this  limited  class,  the  grands,  who  so 
frequently  appear  in  French  Court  history,  but  who, 
away  from  the  Court,  were  much  the  most  respected 
and  beloved  of  their  order,  formed  the  counterpart, 
from  the  legal  point  of  view,  of  the  English  landed 
proprietary.  The  rest  of  the  nobles  lived  mainly,  not 
on  rent  but  on  their  feudal  dues,  and  eked  out  a 


134  SIGNORIAL  DUES.  user.  v. 

meagre  subsistence  by  serving  the  King  in  arms. 
The  sense  of  property  in  the  soil  was  thus  not  in  the 
lord  but  in  the  peasantry ;  and  the  peasantry  viewed 
the  exercise  of  signorial  rights  with  a  feeling  closely 
akin  to  that  which  is  inspired  by  a  highly  oppressive 
tax.  The  condition  of  sentiment  produced  by  it  is 
even  now  a  political  force  of  some  moment  in  France ; 
and  a  similar,  though  a  far  weaker,  repulsion  is  known 
to  have  been  caused  in  this  country  by  the  taking  of 
tithes  in  kind.  It  is  a  significant  fact  that,  where 
the  ownership  is  acknowledged  to  reside  in  the 
superior  holder,  the  exaction  of  even  an  extreme 
rent  from  the  tenants  below  has  very  rarely  been 
regarded  with  the  same  bitterness  of  resentment. 

The  change,  therefore,  which  took  place  in  France 
at  the  first  Revolution  was  this :  the  land -law  of 
the  people  superseded  the  land-law  of  the  nobles. 
In  England  the  converse  process  has  been  gone 
through,  and  what  has  occurred  is  obviously  in  har- 
mony with  much  else  in  English  history.  The  system 
of  the  nobles  has  become  in  all  essential  particulars 
the  system  of  the  people.  The  rule  of  primogeniture, 
which  once  applied  only  to  knightly  holdings,  came 
to  apply  to  the  great  bulk  of  English  tenures,  except 
the  Gavelkind  of  Kent  and  some  others  of  merely 
local  importance.  This  part  of  the  change  took  place 
at  a  remote  epoch,  and  its  circumstances  are  involved 
in  much  obscurity ;  and  we  know  little  more  of  it 


LECT.  v.    CONTRAST   BETWEEX   FRANCE   AND    ENGLAND.      125 

with  certainty  than  that  it  was  rapidly  proceeding 
between  the  time  at  which  Glanville  and  the  time  at 
which  Brae  ton  wrote.  Glanville,  probably  not  earlier 
than  the  thirty-third  year  of  Henry  the  Second's  reign, 
expresses  himself  as  if  the  general  rule  of  law  caused 
lands  held  by  free  cultivators  in  socage  to  be  divided 
equally  between  all  the  male  children  at  the  death  of 
the  last  owner  ;  Bracton,  probably  not  later  than  the 
fifty-second  year  of  Henry  the  Third,  writes  as  if  the 
rule  of  primogeniture  applied  universally  to  military 
tenures  and  generally  to  socage  tenures.  But  another 
branch  of  the  process  was  postponed  almost  to  our 
own  day.  Possibly  not  many  Englishmen  have  re- 
cognised with  as  much  clearness  as  a  recent  French 
writer  (  Doniol,  '  La  Revolution  Fran9aise  et  la  Feo- 
dalite*')  that  the  transmutation  of  customary  and  copy- 
hold into  freehold  property,  which  has  been  proceed- 
ing for  about  forty  years  under  the  conduct  of  the 
Copyhold  and  Enclosure  Commissioners,  is  the  peace- 
ful and  insensible  removal  of  a  grievance  which  did 
more  than  any  other  to  bring  about  the  first  French 
Revolution  and  to  prevent  the  re -establishment  of 
the  ancient  political  order.  But  long  before  there 
was  a  Copyhold  Commission,  the  great  mass  of  Eng- 
lish landed  property  had  assumed  certain  character- 
istics which  strongly  distinguished  it  from  the 
peasant  property  of  the  Continent  as  it  existed 
before  it  was  affected  by  the  French  Codes,  and  as 


120  ENGLISH   FORM   OF   OWNERSHIP.  IECT.  T. 

it  is  still  found  in  some  countries.  This  last  form 
of  proprietorship  was  very  generally  fettered  by  the 
duty  of  cultivation  in  some  particular  way,  and,  as  a 
rule,  could  not  he  dealt  with  so  as  to  bar  the  rights 
reserved  to  the  children  and  widow  of  the  owner  by 
the  law  of  succession.  The  traces  of  a  similar  species 
of  ownership,  probably  once  widely  diffused,  may 
still  be  here  and  there  discerned  through  the  customs 
of  particular  English  manors.  I  repeat  the  opinion 
which  I  expressed  three  years  ago,  that  our  modern 
English  conception  of  absolute  property  in  land  is 
really  descended  from  the  special  proprietorship  en- 
joyed by  the  Lord,  and  more  anciently  by  the  tribal 
Chief,  in  his  own  Domain.  It  would  be  out  of  place 
to  enter  here  on  a  discussion  of  the  changes  which 
seem  to  me  desirable  in  order  to  make  the  soil  of 
England  as  freely  exchangeable  as  the  theory  now 
generally  accepted  demands  ;  but  to  the  principle  of 
several  and  absolute  property  in  land  I  hold  this 
country  to  be  committed.  I  believe  I  state  the  in- 
ference suggested  by  all  known  legal  history  when 
\j  I  say  that  there  can  be  no  material  advance  in  civili- 
sation unless  landed  property  is  held  by  groups  at 
least  as  small  as  Families  ;  and  I  again  remind  you 
that  we  are  indebted  to  the  peculiarly  absolute 
English  form  of  ownership  for  such  an  achievement 
as  the  cultivation  of  the  soil  of  North  America. 

Before  describing  to  you  the  new  light  which  the 


LECT.  v.         IRISH  THEORIES   OF  CHIEF  AND   TEIBF.  127 

Ancient  Laws  of  Ireland  throw  on  the  primitive  con- 
dition of  the  institutions  of  which  I  have  been  speak- 
ing let  me  give  you  one  word  of  caution  as  to  the 
statements  of  modern  Irish  writers  respecting  the 
original  relations  of  the  Irish  Tribe  and  of  the  Irish 
Tribal  Chief.  Unhappily  the  subject  has  been  dis- 
cussed in  the  spirit  of  the  later  agrarian  history  of 
Ireland.  On  the  one  hand,  some  disputants  have 
thought  to  serve  a  patriotic  purpose  by  contending 
that  the  land  of  each  Tribe  belonged  absolutely  to  it- 
self and  was  its  common  property,  and  that  the  Chief 
was  a  mere  administrative  officer,  rewarded  for  his 
services  in  making  a  fair  distribution  of  the  territory 
among  the  tribesmen  by  a  rather  larger  share  of  its 
area  than  the  rest,  which  was  allotted  to  him  as  his 
domain.  Contrariwise,  some  writers,  not  perhaps 
actuated  by  much  kindliness  to  the  Irish  people,  have 
at  least  suggested  that  they  were  always  cruelly  op- 
pressed b)'  their  superiors,  and  probably  by  their 
natural  chiefs  more  than  any  others.  These  authors 
point  to  the  strong  evidence  of  oppression  by  the 
Chiefs  which  the  books  of  the  English  observers  of 
Ireland  contain.  Edmund  Spenser  and  Sir  John  Davis 
cannot  have  merely  intended  to  calumniate  the  Irish 
native  aristocracy  when  they  emphatically  declared 
that  the  '  chiefs  do  most  shamefully  rackrent  their 
tenants,  and  spoke  with  vehement  indignation  of  the 
exactions  from  which  the  tribesmen  suffered,  the 


128  IRISH   THEORIES   OF   CHIEF  AND   TRIBE.       LECT.  v. 

*  coshering,'  and  the  '  coin  and  livery,'  which  occur 
over  and  over  again  in  their  pages.  A  third  school, 
of  a  very  different  order  from  these,  has  representa- 
tives among  the  most  learned  Irishmen  of  our  day. 
They  resent  the  assertion  that  the  land  belonged  to 
the  tribe  in  common  as  practically  imputing  to  the 
ancient  Irish  that  utter  barbarism  to  which  private 
property  is  unknown.  They  say  that  traces  of  owner- 
ship jealously  guarded  are  found  in  all  parts  of 
the  Brehon  laws,  and  they  are  on  the  whole  apt  to 
speak  of  the  vassalage  to  the  Chief  which  these  laws 
attribute  to  the  tribesmen  as  if  it  implied  something 
like  modern  tenancy  in  the  latter  and  modern  owner- 
ship in  the  former.  But  they  say  that  the  relation 
of  landlord  and  tenant  was  regulated  by  careful  and 
kindly  provisions,  and  they  ascribe  the  degradation 
of  the  system,  like  the  other  evils  of  Ireland,  to 
English  cupidity  and  ignorance.  The  Norman  nobles 
who  first  settled  in  Ireland  are  well  known  to  have 
become  in  time  Chieftains  of  Irish  Tribes ;  and  it  is 
suggested  that  they  were  the  first  to  forget  their 
duties  to  their  tenants  and  to  think  of  nothing  but 
their  privileges.  Nor  is  there  anything  incredible  in 
this  last  assumption.  An  English  settler  in  India 
who  buys  land  there  is  often  reputed  a  harder  land- 
lord than  the  native  zemindars,  his  neighbours,  not 
because  he  intends  to  be  harsher  (indeed  in  some 
things  he  is  usually  far  more  considerate  and  bounti- 


LECT.  T.     THE   AGRARIAN  SYSTEM  NOT   STATIONARY.  129 

ful),  but  because  he  is  accustomed  to  a  stricter  system 
and  cannot  accommodate  himself  to  the  loose  and 
irregular  play  of  relations  between  native  landowner 
and  native  tenant. 

I  cannot  wholly  concur  in  any  one  of  these  theo- 
ries concerning  Chief  and  Tribe.  Each  seems  to  me 
to  contain  a  portion  of  truth,  but  not  the  whole.  Let 
me  first  say  that  the  whole  land-system  shadowed  forth 
in  the  Brehon  laws  does  seem  to  me  to  have  for  its 
basis  the  primary  ownership  of  the  tribe-land  by  the 
Tribe.  It  is  also  true  that  the  Chief  appears  to  exer- 
cise certain  administrative  duties  in  respect  of  this 
land,  and  that  he  has  a  specific  portion  of  the  tribe- 
land  allotted  to  him,  in  the  vicinity  of  his  residence  or 
stronghold,  for  the  maintenance  of  his  household  and 
relatives.  But  this  is  not  all.  As  we  see  the  system 
through  the  law,  it  is  not  stationary,  but  shifting,  de- 
veloping, disintegrating,  re-combining.  Even  accord- 
ing to  the  texts  apparently  oldest,  much  of  the  tribal 
territory  appears  to  have  been  permanently  alienated 
to  sub-tribes,  families,  or  dependent  chiefs ;  and  the 
glosses  and  commentaries  show  that,  before  they 
were  written,  this  process  had  gone  very  far  indeed. 
Whatever,  again,  may  have  been  the  original  dignity 
and  authority  of  the  Chief,  they  are  plainly  growing, 
not  merely  through  the  introduction  of  alien  prin- 
ciples and  ideas,  but  from  natural  causes,  more  or 
less  operative  all  over  Europe.  The  general  charac- 

K 


130  GROWING   POWER    OF   CHIEF.  LECT.  v, 

ter  of  these  causes  is  very  much  the  same  as  in  the 
Germanic  countries.  The  power  of  the  Chief  grows 
first  through  the  process  which  is  called  elsewhere 
'  commendation,'  the  process  by  which  the  free  tribes- 
man becomes '  his  man,'  and  remains  in  a  state  of  de- 
pendence having  various  degrees.  It  farther  grows 
from  his  increasing  authority  over  the  waste-lands  of 
the  tribal  territory  and  from  the  servile  or  semi-ser- 
vile colonies  he  plants  there ;  and  lastly,  it  augments 
from  the  material  strength  which  he  acquires  through 
the  numbers  of  his  immediate  retainers  and  asso- 
ciates, most  of  whom  stand  to  him  in  more  or  less 
servile  relations.  But  the  Brehon  law  tells  us  much 
that  is  novel  and  surprising  concerning  the  particular 
course  of  these  changes  and  their  nature  in  detail. 
It  furnishes  us  with  some  wholly  new  ideas  concern- 
ing the  passage  of  society  from  inchoate  to  complete 
feudalism,  and  helps  us  to  complete  the  account  of  it 
derived  from  Germanic  sources.  In  this,  as  it  seems  to 
me,  the  greatest  part  of  its  interest  consists. 

With  the  Chieftaincy  of  the  Tribe  the  early  his- 
tory of  modern  Aristocracy  and  modern  Kingship 
begins.  These  two  great  institutions  had,  in  fact,  at 
first  the  same  history,  and  the  Western  world  long 
continued  to  bear  the  marks  of  their  original  identity. 
The  Manor  with  its  Tenemental  lands  held  by  the  free 
tenants  of  the  Lord,  and  with  its  Domain  which  was 
in  immediate  dependence  on  him,  was  the  type  of  all 


IECT.  T.  ARISTOCRACY  AND  KINGSHIP.  131 

the  feudal  sovereignties  in  their  complete  form,  whether 
the  ruler  acknowledged  a  superior  above  him  or 
whether  he  at  most  admitted  one  in  the  Pope,  or  the 
Emperor,  or  God  himself.  In  every  County,  or  Duke- 
dom, or  Kingdom  there  were  great  tenants  holding 
directty  of  its  head  and  on  some  sort  of  parity  with 
him;  and  there  was  a  Domain  under  his  more  im- 
mediate government  and  at  his  immediate  disposal. 
There  is  no  obscurer  and  more  difficult  subject  than 
the  origin  of  the  class  whose  power  was  the  keystone 
of  all  these  political  and  proprietary  constructions, 
and  none  on  which  the  scantiest  contributions  to  our 
knowledge  are  more  welcome. 

There  is  one  view  of  the  original  condition  of 
privileged  classes  which,  though  held  by  learned  men, 
has  been  a  good  deal  weakened  of  late  by  German 
research,  and  seems  to  me  still  farther  shaken  by 
portions  of  the  Brehon  law.  This  is  the  impression 
that  they  always  constituted,  as  they  practically  do 
now,  a  distinct  class  or  section  of  the  community,  each 
member  of  the  class  standing  in  a  closer  relation  to 
the  other  members  than  to  the  rest  of  the  national 
or  tribal  society  to  which  all  belong.  It  cannot  be 
doubted  that  the  earliest  modern  aristocracies  have  as 
a  fact,  when  they  are  first  discerned,  this  particular 
aspect.  Mr.  Freeman  ('Norman  Conquest/  i.  88) 
says  that  the  '  difference  between  eorl  and  ceorl  is  a 
primary  fact  from  which  we  start.*  Tacitus  plainly 


132  ORIGIN  OP   NOBILITY.  LECT.  v. 

distinguished  the  noble  from  the  non-noble  freeman 
in  the  Germanic  societies  which  he  observed ;  and 
Csesar,  as  I  stated  in  another  Lecture,  divides  all  the 
Continental  Celtic  tribes  into  the  Equites  and  the 
Plebs.  We  can  understand  that  a  spectator  looking 
at  a  set  of  tribal  communities  from  the  outside  world 
naturally  class  together  all  men  visibly  exalted  above 
the  rest ;  but  nevertheless  this  is  not  quite  the  ap- 
pearance which  early  Germanic  society  wears  in  the 
eyes  of  enquirers  who  follow  the  method  of  Yon 
Maurer  and  Landau.  Each  Chief  or  Lord  appears  to 
them  to  have  been  noble  less  with  reference  to  other 
noblemen  than  with  reference  to  the  other  free  tribes- 
men comprised  in  the  same  group  with  himself. 
Nobility  has  many  diverse  origins;  but  its  chief 
source  seems  to  have  been  the  respect  of  co-villagers 
or  assemblages  of  kinsmen  for  the  line  of  descent  in 
which  the  purest  blood  of  each  little  society  was  be- 
lieved to  be  preserved.  Similarly,  the  Brehon  law 
suggests  that  the  Irish  Chiefs  were  not  the  class  by 
themselves  which  the  corresponding  order  among  the 
Continental  Celts  appeared  to  Caesar  to  be,  but  were 
necessarily  the  heads  of  separate  groups  composed  of 
their  kindred  or  of  their  vassals.  '  Every  chief,'  says 
the  text  which  I  quoted  before,  '  rules  over  his  land, 
whether  it  be  great  or  whether  it  be  small.'  And 
while  the  Irish  law  describes  the  way  (as  I  shall 
point  out)  in  which  a  common  freeman  can  become  a 


LECI.  v.  ORIGIN  OP  NOBILITY.  133 

chief,  it  also  shows  that  the  position  to  which  he 
attains  is  the  presidency  of  a  group  of  dependants. 
Nevertheless  the  persons  thus  elevated  undoubtedly 
tend  to  become,  from  various  causes,  a  class  by  them- 
selves and  a  special  section  of  the  general  community; 
and  it  is  very  probable  that  the  tendency  was  at  work 
from  the  earliest  times.  It  is  farther  to  be  remarked 
that  some  aristocracies  were  really  a  section  of  the 
community  from  the  very  first.  This  structure  of 
society  is  produced  where  one  entire  tribal  group 
conquers  or  imposes  its  supremacy  upon  other  tribal 
groups  also  remaining  entire,  or  where  an  original 
body  of  tribesmen,  villagers,  or  citizens,  gradually 
gathers  round  itself  a  miscellaneous  assemblage  of 
protected  dependants.  There  are  many  known  in- 
stances of  both  processes,  and  the  particular  relation 
of  tribal  groups  which  the  former  implies  was  certainly 
not  unknown  to  the  Celtic  societies.  Among  the 
Scottish  Highlanders  some  entire  septs  or  clans  are 
stated  to  have  been  enslaved  to  others;  and  on  the  very 
threshold  of  Irish  history  we  meet  with  a  distinction 
between  free  and  rent-paying  tribes  which  may  possibly 
imply  the  same  kind  of  superiority  and  subordination. 
The  circumstance  of  greatest  novelty  in  the  posi- 
tion of  the  Chief  which  the  Brehon  law  appears  to  me 
to  bring  out  is  this :  Whatever  else  a  Chief  is,  he  is 
before  all  things  a  rich  man ;  not,  however,  rich,  as 
popular  associations  would  lead  us  to  anticipate,  in 


134  HELLENIC  AND   TEUTONIC  CHIEFS.  IKCT.  v. 

land,  but  in  live  stock — in  flocks  and  ^erds,  in  sheep, 
and  before  all  things  in  oxen.  Here  let  me  interpose 
«/  the  remark,  that  the  opposition  commonly  set  up  be- 
tween birth  and  wealth,  and  particularly  wealth  other 
than  landed  property,  is  entirely  modern.  In  French 
literature,  so  far  as  my  knowledge  extends,  it  first 
appears  when  the  riches  of  the  financial  officers  of  the 
French  monarchy — the  Superintendents  and  Farmers- 
General — begin  to  attract  attention.  With  us  it  seems 
to  be  exclusively  the  result  of  the  great  extension 
and  productiveness  of  industrial  undertakings  on  the 
largest  scale.  But  the  heroes  of  the  Homeric  poems 
are  not  only  valiant  but  wealthy  (Odyss.  xiv.  96-106) ; 
the  warriors  of  the  Nibelungen-Lied  are  not  only  noble 
but  rich.  In  the  later  Greek  literature  we  find  pride 
of  birth  identified  with  pride  in  seven  wealthy  ancestors 
in  succession,  eirra  TrwrnrQi  TrXovcrtot ;  and  you  are  well 
aware  how  rapidly  and  completely  the  aristocracy 
of  wealth  assimilated  itself  in  the  Roman  State  to 
the  aristocracy  of  blood.  Passing  to  the  Irish  Chief 
we  find  the  tract  called  the  '  Cain-Aigillne '  laying 
down  (p.  279)  that  'the  head  of  every  tribe  should  be 
the  man  of  the  tribe  who  is  the  most  experienced,  the 
most  noble,  the  most  wealthy,  the  most  learned,  the 
most  truly  popular,  the  most  powerful  to  oppose,  the 
most  steadfast  to  sue  for  profits  and  to  be  sued  for 
losses.'  There  are  many  other  passages  to  the  same 
effect;  and  on  closely  examining  the  system  (as  I  pro- 


.  v.  NOBILITf   AND    WEALTH.  136 

pose  to  do  ]  resently)  we  can  perceive  that  personal 
wealth  was  the  principal  condition  of  the  Chief's 
maintaining  his  position  and  authority. 

But  while  the  Brehon  laws  suggest  that  the  pos- 
session of  personal  wealth  is  a  condition  of  the  main- 
tenance of  chieftainship,  they  show  with  much  dis- 
tinctness that  through  the  acquisition  of  such  wealth 
the  road  was  always  open  to  chieftainship.  We  are 
not  altogether  without  knowledge  that  in  some  Euro- 
pean societies  the  humble  freeman  might  be  raised  by 
wealth  to  the  position  which  afterwards  became  mo- 
dern nobility.  One  fact,  among  the  very  few  which 
are  tolerably  well  ascertained  respecting  the  specific 
origin  of  particular  modern  aristocracies  is,  that  a  por- 
tion of  the  Danish  nobility  were  originally  peasants ; 
and  there  are  in  the  early  English  laws  some  traces 
of  a  process  by  which  a  Ceorl  might  become  a  Thane. 
These  might  be  facts  standing  by  themselves,  and 
undoubtedly  there  is  strong  reason  to  suspect  that 
the  commencements  of  aristocracy  were  multifold; 
but  the  Brehon  tracts  point  out  in  several  places, 
with  legal  minuteness,  the  mode  in  which  a  peasant 
freeman  in  ancient  Ireland  could  become  a  chief. 
There  are  few  personages  of  greater  interest  spoken 
of  in  these  laws  than  the  Bo- Aire,  literally  the  '  cow- 
nobleman.'  He  is,  to  begin  with,  simply  a  peasant 
who  has  grown  rich  in  cattle,  probably  through 
obtaining  the  use  of  large  portions  of  tribe-land. 


186  THE   BO-AIRE.  LECT.  T, 

The  true  nobles,  or  Aires — a  word  striking  from  its 
consonance  with  words  of  similar  meaning  in  the 
Teutonic  languages — are  divided,  though  we  can 
scarcely  believe  the  classification  to  correspond  with 
an  universal  fact,  into  seven  grades.  Each  grade  is 
distinguished  from  the  others  by  the  amount  of 
wealth  possessed  by  the  Chief  belonging  to  it,  by  the 
weight  attached  to  his  evidence,  by  his  power  of 
binding  his  tribe  by  contracts  (literally  of  '  knotting '), 
by  the  dues  which  he  receives  in  kind  from  his  vassals 
according  to  a  system  to  be  presently  described,  and 
by  his  Honor-Price,  or  special  damages  incurred  by 
injuring  him.  At  the  bottom  of  the  scale  is  the 
chief  or  noble  called  the  Aire-desa;  and  the  Brehon 
law  provides  that  when  the  Bo-Aire  has  acquired 
twice  the  wealth  of  an  Aire-desa,  and  has  held  it  for 
a  certain  number  of  generations,  he  becomes  an  Aire- 
desa  himself.  The  advantage  secured  to  wealth  does 
not,  you  see,  exclude  respect  for  birth,  but  works 
into  it.  '  He  is  an  inferior  chief,'  says  the  '  Senchus 
Mor,'  '  whose  father  was  not  a  chief; '  and  there  are 
many  other  strong  assertions  of  the  reverence  due 
to  inherited  rank.  The  primary  view  of  chieftainship 
is  evidently  that  it  springs  from  purity  or  dignity  of 
blood,  but  noble  birth  is  regarded  as  naturally  associ- 
ated with  wealth,  and  he  who  becomes  rich  gradually 
climbs  to  a  position  indistinguishable  from  that  which 
he  would  have  occupied  if  he  had  been  nobly  born. 


IJJCT.  v.  POPULAR   THEORY   OP   NOBILITY.  137 

What  is  thus  new  in  the  system  is  the  clear  account 
of  nobility  as  a  status,  having  its  origin  in  the  or- 
ganic structure  of  ancient  society,  but  nevertheless 
in  practice  having  perpetually  fresh  beginnings. 

The  enormous  importance  which  belongs  to 
wealth  and  specially  to  wealth  in  cattle,  in  the  early 
Aryan  society  reflected  by  the  Brehon  tracts,  helps, 
I  think,  to  clear  up  one  great  difficulty  which  meets 
us  on  the  threshold  of  an  enquiry  into  the  origin  ol 
aristocracies.  I  suppose  that  the  popular  theory  on 
the  subject  of  the  privileged  class  in  modern  commu- 
nities is  that  it  was  originally  indebted  for  its  status, 
if  not  for  its  power  or  influence,  to  kingly  favour. 
An  Englishman  once  questioned  the  Emperor  Paul 
of  Russia  on  the  position  of  the  Russian  nobility. 
*  The  only  man  who  is  noble  in  my  dominions,'  said 
the  Czar,  '  is  the  man  to  whom  I  speak,  for  the  time 
that  I  am  speaking  to  him.'  I  merely  take  these 
words  as  the  strongest  possible  statement  of  the  view 
to  which  I  am  referring  ;  but  they  were  used  by  a 
monarch  with  a  disturbed  brain,  whose  authority  had 
contracted  something  of  an  Oriental  character  from 
its  long  subordination  to  Tartar  power,  and  they  were 
never  absolutely  true  even  of  Russia.  Among  our- 
selves, however,  the  favourite  assumption  seems 
certainly  to  be,  however  slight  may  be  the  practical 
consequences  we  draw  from  it,  that  all  aristocratic 
privilege  had  its  origin  in  kingly  grace;  and  this 


138  NOBILITY  AND   THE  KING.  LECT.  7. 

appears,  on  the  whole,  to  be  the  theory  of  English 
law.  But  the  institutions  of  many  parts  of  the  Con- 
tinent long  retained  the  traces  of  a  different  set  of 
ideas,  and  these  were  found  where  kingly  power  was 
actually  much  greater  than  in  England.  The  French 
Noblesse,  before  the  Revolution,  would  as  a  body 
have  resented  the  assertion  that  they  were  a  creation 
of  the  King,  and  the  Kings  of  France  more  than  once 
admitted  that  they  were  only  the  most  exalted  mem- 
bers of  a  class  to  which  their  own  nobility  belonged. 
Kings  have  everywhere  nowadays,  and  in  many 
countries  have  had  for  centuries,  a  monopoly  of  the 
power  of  ennobling.  This  road  to  nobility  has  been 
so  long  trodden,  that  men  in  general  have  almost  for- 
gotten there  ever  was  another  route.  Yet  historical 
scholars  have  long  known  that  nobility  conferred  by 
royal  grant  was,  in  one  sense,  a  modern  institution, 
though  they  have  not  succeeded  in  completely  ex- 
plaining how  it  came  to  supplant  or  dwarf  the  insti 
tution  upon  which  it  was  engrafted.  There  seems  to 
be  no  doubt  that  the  first  aristocracy  springing  from 
kingly  favour  consisted  of  the  Comitatus,  or  Com- 
panions of  the  King.  Although  there  is  a  good  deal 
of  evidence  that  the  class  was  at  first  considered  in. 
some  Way  servile,  it  gradually  became  in  some  coun- 
tries the  type  of  all  nobility.  A  few  tolerably  familiar 
facts  may  serve  to  remind  us  how  remarkable  has 
been  the  fortune  of  the  royal  louseh^lds  all  over 


LECT.  v.  THE   ROYAL    HOUSEHOLD.  139 

Western  Europe.  The  Mayor  of  the  Frankish  Palace 
became  King  of  the  Franks.  The  Chamberlain  of 
the  Romano-German  Emperors  is  now  the  German 
Emperor.  The  blood  of  the  Steward  of  Scotland 
runs  in  the  veins  of  the  Kings  of  England.  The 
Constables  of  France  repeatedly  shook  or  saved  the 
French  throne.  Among  ourselves  the  great  officers 
of  the  Royal  Council  and  Household  still  take  prece- 
dence either  of  all  Peers  or  of  all  Peers  of  their  own 
degree.  Whence,  then,  came  this  great  exaltation  of 
the  Mayor  or  Count  of  the  Palace,  of  the  great  Sene- 
schal or  Steward,  of  the  High  Chancellor,  the  Great 
Chamberlain,  and  High  Constable — titles  which, 
when  they  do  not  mark  an  office  originally  clerical, 
point  to  an  occupation  which  must  at  first  have  been 
menial  ? 

It  seems  certain  that  the  Household  sprang  from 
very  humble  beginnings.  Tacitus  describes  the 
companions  of  the  Germanic  chief  as  living  with 
him  in  his  house  and  supported  by  his  bounty. 
Mr.  Stubbs  when  stating  ('  Constitutional  History/ 
p.  150)  that  '  the  gesiths  of  an  (English)  king  were 
his  guard  and  private  council,'  observes  that  the 
'free  household  servants  of  a  ceorl  are  also  in  a 
certain  sense  his  gesiths.'  The  Companions  of  the 
King  appear  also  in  the  Irish  legal  literature,  but  they 
are  not  noble,  and  they  are  associated  with  the  king's 
body-guard,  which  is  essentially  servile.  The  King  of 


140  COMPANIONS   OF   THE  KING   OF  ERIN.         user.  T. 

Erin,  though  he  never  existed  (strictly  speaking), 
save  for  short  intervals,  yet  always,  so  to  speak, 
tended  to  exist,  and  the  Crith  Gablach,  a  Brehon 
tract  of  which  a  translation  is  given  at  the  end  of 
Sullivan's  edition  of  O'Curry's  Lectures,  contains  a 
picture  of  his  palace  and  state.  The  edifice  intended 
to  be  described  is  apparently  very  much  the  same  as 
the  great  Icelandic  house  of  which  Mr.  Dasent,  in 
the  '  Story  of  Burnt  Njal,'  has  attempted  to  give  a 
drawing  from  the  descriptions  found  in  Norse  litera- 
ture. In  it  the  King  feasts  his  guests,  from  kings 
and  king's  sons  to  a  ghastly  company  of  prisoners 
in  fetters,  the  forfeited  hostages  of  subject-chiefs  or 
sub-septs  who  have  broken  their  engagements.  The 
Companions  are  there  also,  and  they  are  stated  to 
consist  of  his  privileged  tenantry  and  of  his  body- 
guard, which  is  composed  of  men  whom  he  has 
delivered  from  death,  jail,  or  servitude,  never  (a 
significant  exception)  of  men  whom  he  has  saved  on 
the  battle-field.  I  am  afraid  that  the  picture  of  Irish 
society  supplied  by  the  Crith  Gablach  must  through- 
out be  regarded  as  to  a  great  extent  ideal  or  theo- 
retical; at  any  rate,  there  is  much  testimony  from 
English  visitors  to  Ireland  that  many  considerable 
Irish  Chiefs  were  much  more  humbly  furnished  out 
than  the  King  of  Erin  at  Tara.  Yet  it  is  very  likely 
that  they  all  had  Companions  attending  them,  and 
I  suspect  thafc  the  obligation  of  maintaining  a  little 


LECT.  T.  RETINUE   OF   HIGHLAND   CHIEFS.  141 

court  bar.  much  to  do  with  that  strange  privilege 
which  in  later  times  had  a  deplorable  history,  the 
right  of  the  Chief  to  go  with  a  following  to  the 
dwellings  of  his  tenants  and  there  be  feasted  at  the 
tenant's  expense.  That  even  petty  Chiefs  of  the 
Scottish  Highlands  had  a  retinue  of  the  same  cha- 
racter is  known  to  all  who  can  recall  that  immortal 
picture  of  Celtic  society  which  for  the  first  tune 
brought  it  home  to  men  who  were  nearly  our  con- 
temporaries that  ancient  Celtic  life  and  manners  had 
existed  almost  down  to  their  days — the  novel  of 
'  VVaverley.' 

It  seems  extremely  probable  that,  in  a  particular 
stage  of  society,  this  personal  service  to  the  Chief  or 
King  was  everywhere  rendered  in  expectation  of 
reward  in  the  shape  of  a  gift  of  land.  The  Com- 
panions of  the  Teutonic  kings,  in  Continental  Europe, 
shared  largely  in  the  Benefices — grants  of  Roman 
provincial  land  fully  peopled  and  stocked.  In  ancient 
England  the  same  class  are  believed  to  have  been 
the  largest  grantees  of  public  land  next  to  the 
Church;  and  doubtless  we  have  here  part  of  the 
secret  of  the  mysterious  change  by  which  a  new 
nobility  of  Thanes,  deriving  dignity  and  authority 
from  the  King,  absorbed  the  older  ncb'.lity  of  Eorls. 
But  we  are  a  little  apt  to  forget  the  plentifulness  of 
land  in  countries  lying  beyond  the  northern  and 
western  limits  of  the  Roman  Empire,  or  just  within 


142          CTIEAPIfESS   OF  LAND   IN  PRIMITIVE  TIMES.   EECT.  v. 

them.  Mr.  Thorold  Rogers,  writing  of  a  period 
relatively  much  later,  and  founding  his  opinion  on 
the  extant  evidence  of  returns  from  manor-lands, 
speaks  of  land  as  the  'cheapest  commodity  of  the 
Middle  Ages.'  The  practical  difficulty  was  not  to 
obtain  land,  but  the  instruments  for  making  it  pro- 
ductive ;  and  hence,  in  a  society  older  relatively  than 
any  Teutonic  society  of  which  we  have  any  distinct 
knowledge,  that  veiy  society  which  the  Brehon  tracts 
enable  us  to  understand,  it  may  very  well  have 
been  that  the  object  of  suit  at  court  was  much  less  to 
obtain  land  than  to  obtain  cattle.  The  Chief,  as  I 
have  already  said,  was  before  all  things  rich  in  flocks 
and  herds.  He  was  military  leader,  and  a  great  part 
of  his  wealth  must  have  been  spoil  of  war,  but  in  his 
civil  capacity  he  multiplied  his  kine  through  his 
growing  power  of  appropriating  the  waste  for  pasture, 
and  through  a  system  of  dispersing  his  herds  among 
the  tribesmen,  which  will  be  described  in  the  next 
Lecture.  The  Companion  who  followed  him  to  the 
foray,  or  was  ready  to  do  so,  cannot  but  have  been 
enriched  by  his  bounty;  and  thus,  if  already  noble,  he 
became  greater;  if  he  was  not  noble,  the  way  to 
nobility  lay  through  wealth.  The  passage  which  I 
am  about  to  read  to  you  may  serve  to  illustrate  what 
probably  took  place,  though  there  is  nothing  except 
common  humanity  to  connect  the  tribes  of  whose 
customs  it  speaks  with  the  primitive  Teutons  and 


.  v.  KAFIR   CHIEFS.  143 

Celts.  The  Rev.  H.  Dugmore,  in  a  most  interesting 
volume,  called  a  *  Compendium  of  Kafir  Laws  and 
Customs,'  and  published  at  the  Wesleyan  Missionary 
Press,  Mount  Coke,  British  Kaflraria,  writes  thus  of 
much  the  most  advanced  of  the  South  African  native 
races,  the  Kafirs  or  Zulus  (p.  27) :  'As  cattle  con- 
stitute the  sole  wealth  of  the  people,  so  they  are 
their  only  medium  of  such  transactions  as  involve 
exchange,  payment,  or  reward.  The  retainers  of  a 
chief  serve  him  for  cattle;  nor  is  it  expected  that  he 
could  maintain  his  influence,  or  indeed  secure  any 
number  of  followers,  if  unable  to  provide  them  with 
what  at  once  constitutes  their  money,  food,  and 
clothing.  He  requires,  then,  a  constant  fund  from 
which  to  satisfy  his  dependants;  and  the  amount  of 
the  fund  required  may  be  judged  of  from  the  cha- 
racter of  the  demand  made  upon  him.  His  retinue, 
court,  or  whatever  it  is  to  be  called,  consists  of  men 
from  all  parts  of  the  tribe,  the  young,  the  clever,  and 
the  brave,  who  come  to  do  court  service  for  a  time, 
that  they  may  obtain  cattle  to  furnish  them  with  the 
means  of  procuring  wives,  arms,  or  other  objects  of 
desire.  On  obtaining  these  they  return  to  their 
homes  and  give  place  to  others.  Thus  the  immediate 
retinue  of  a  chief  is  continually  changing,  and  con- 
stitutes a  permanent  drain  on  his  resources.'  Mr. 
Dugmore  goes  on  to  state  that  the  sources  of  the 
chief's  wealth  are  the  inherited  cattle  of  his  father, 


144  CATTLE-STEALING.  LECT.  T. 

offerings  made  to  him  on  the  ceremony  of  his  circum- 
cision, benevolences  levied  from  his  tribe,  fines  and 
confiscations,  and  the  results  of  predatory  excursions. 
The  remarkable  part  played  by  kine  in  ancient 
Irish  society  will,  I  hope,  be  made  more  intelligible 
in  the  next  Lecture.  Meantime,  let  me  observe  that 
the  two  Celtic  societies  included  in  these  islands 
which  longest  retained  their  ancient  usages  were  both 
notoriously  given  to  the  plunder  of  cattle.  Lord 
Macaulay,  in  speaking  of  Irish  cattle -stealing,  some- 
times, I  must  own,  seems  to  me  to  express  himself  as 
if  he  thought  the  practice  attributable  to  some  native 
vice  of  Irish  character ;  but  no  doubt  it  was  what  Mr. 
Tylor  has  taught  us  to  call  a  survival,  an  ancient 
and  inveterate  habit,  which  in  this  case  continued 
through  the  misfortune  which  denied  to  Ireland  the 
great  condition  of  modern  legal  ideas,  a  strong 
central  government.  The  very  same  practice,  among 
the  Celts  of  the  Scottish  Highlands  and  the  rude 
Germanic  population  of  the  Lowland  Border,  has 
almost  been  invested  by  one  man's  genius  with  the 
dignity  of  a  virtue.  Again,  turning  to  '  Waverley,'  I 
suppose  there  is  no  truer  representative  of  the 
primitive  Celtic  chief  than  Donald  Bean  Lean,  who 
drives  the  cattle  of  Tully  Veolan,  and  employs  a 
soothsayer  to  predict  the  number  of  beeves  which  are 
likely  to  coine  in  his  way.  He  is  a  far  more  genuine 
'  survival '  than  Fergus  Mclvor,  who  all  but  deserts 
his  cause  for  a  disappointment  about  an  earldom. 


LBCT.  v.  THE   STATUS   OF  THE   COMPANIONS.  145 

It  has  been  pointed  out  that  the  status  of  the 
King's  Companions  was  at  first  in  some  way  servile. 
Whenever  legal  expression  has  to  be  given  to  the 
relations  of  the  Comitatus  to  the  Teutonic  kings,  the 
portions  of  the  Roman  law  selected  are  uniformly 
those  which  declare  the  semi-servile  relation  of  the 
Client  or  Freedman  to  his  Patron.  The  Brehon  law 
permits  us  to  take  the  same  view  of  the  corresponding 
class  in  Celtic  societies.  Several  texts  indicate  that 
a  Chief  of  high  degree  is  always  expected  to  surround 
himself  with  unfree  dependants ;  and  you  will  re- 
collect that  the  retinue  of  the  King  of  Erin  was  to 
consist  not  only  of  free  tribesmen  but  of  a  body- 
guard of  men  bound  to  him  by  servile  obligations. 
So  far  as  it  goes,  I  quite  agree  with  the  explanation 
which  Mr.  Freeman  has  given  of  the  original  connec- 
tion between  servile  status  and  that  nobility  with 
which  the  primitive  nobility  of  birth  has  become 
mixed  up  and  confounded.  4  The  lowly  clientage,' 
he  says,  '  of  the  Roman  Patrician  and  the  noble  fol- 
lowing of  the  Hellenic  and  Teutonic  leader  may 
really  come  from  the  same  source,  and  may  both 
alike  be  parts  of  the  same  primeval  heritage/ 
('  Comparative  Politics,'  p.  261.)  But  perhaps  we 
may  permit  ourselves  to  go  a  step  beyond  this  ac- 
count. The  Comitatus  or  Companions  of  the  Chief, 
even  when  they  were  freemen,  were  not  necessarily 
or  ordinarily  his  near  kindred.  Their  dependence  on 

L 


146  SERVILE   POSITION   OF  COMPANIONS.  LECT.  y, 

him,  carrying  with  it  friendship  and  affection,  would 
in  modern  societies  place  them  in  a  position  well 
understood,  and  on  something  like  an  equality  with 
him;  but  in  the  beginning  of  things  one  man  wa,s 
always  the  kinsman,  the  slave,  or  the  enemy  of  an- 
other, and  mere  friendship  and  affection  would,  by 
themselves,  create  no  tie  between  man  and  man.  In 
order  that  they  might  have  any  reality,  they  would 
have  to  be  considered  as  establishing  one  of  the  rela- 
tions known  to  that  stage  of  thought.  Between 
equals  this  would  be  assumed  or  fictitious  kinship. 
But  between  the  Chief  who  embodied  purity  of  tribal 
descent  and  hih  associates,  it  would  have  more  or  less 
to  follow  the  pattern  of  the  slave's  dependence  on  his 
master,  and,  where  the  Companion  was  not  actually 
the  Chief's  slave,  the  bond  which  connected  them 
would  very  probably  be  adapted  to  the  more  honour- 
able model  furnished  by  the  relation  between  ex- 
slave  and  ex-master. 


UOT.  vi.  OXEN  IN  PRIMITIVE   TIMES.  U7 


LECTURE  YL 

THE  CHIEF  AND  THE  LAND. 

THE  Brehon  law-tracts  strongly  suggest  that,  among 
the  things  which  we  in  modern  times  have  most  for- 
gotten, is  the  importance  of  horned  cattle,  not  merely 
in  the  infancy  of  society,  but  at  a  period  when  it  had 
made  some  considerable  advance  towards  maturity. 
It  is  scarcely  possible  to  turn  over  a  page  without 
finding  some  allusion  to  beeves,  to  bulls,  cows,  heifers, 
and  calves.  Horses  appear,  sheep,  swine,  and  dogs; 
and  bees,  the  producers  of  the  greatest  of  primitive 
luxuries,  have  a  place  assigned  to  them  as  an  article 
of  property  which  has  something  corresponding  to  it 
in  old  Roman  law.  But  the  animals  much  the  most 
frequently  mentioned  are  kine.  There  are  some  few 
facts  both  of  etymology  and  of  legal  classification 
which  point  to  the  former  importance  of  oxen. 
Capitale — kine  reckoned  by  the  head — cattle — has 
given  birth  to  one  of  the  most  famous  terms  of 
law  and  to  one  of  the  most  famous  terms  of  poli- 
tical economy,  Chattels  and  Capital.  Pecunia  was 


148  OXEN  IN  PRIMITIVE   TIMES.  LECT.  n. 

probably  the  word  for  money  which  was  employed 
by  the  largest  part  of  mankind  for  the  longest  time 
together.  But  oxen,  though  they  have  furnished  a 
modern  synonym  for  personal  property,  were  not,  I 
need  scarcely  say,  classed  in  the  lower  order  of  com 
modities  in  all  ancient  systems  of  law.  The  primi 
tive  Roman  law  placed  them  in  the  highest  class,  and 
joined  them  with  land  and  slaves  as  items  of  the  JRes 
Mandpi.  As  in  several  other  instances,  the  legal 
dignity  of  this  description  of  property  among  the 
Romans  appears  to  answer  to  its  religious  dignity 
among  the  Hindoos.  Kine,  which  the  most  ancient 
Sanscrit  literature  shows  to  have  been  eaten  as  food, 
became  at  some  unknown  period  sacred,  and  their 
flesh  forbidden;  and  ultimately  two  of  the  chief 
'Things  which  required  a  Mancipation'  at  Rome, 
oxen  and  landed  property,  had  their  counterpart  in 
the  sacred  bull  of  Siva  and  the  sacred  land  of  India. 
The  subject  has  possibly  been  obscured  by  an 
impression  that  horned  cattle  were  only  of  pre- 
eminent importance  to  mankind  in  that  pastoral 
stage  of  society  which  has  been  the  theme  of  so  much 
not  altogether  profitable  speculation.  The  actual 
evidence  seems  to  show  that  their  greatest  value  was 
obtained  when  groups  of  men  settled  on  spaces  of 
land  and  betook  themselves  to  the  cultivation  of 
food-grains.  It  is  very  possible  that  kine  were  at 
first  exclusively  valued  for  their  flesh  and  milk,  but 


user,  n.  KINE  AS  A  MEASURE   OP   VALUE.  149 

it  is  clear  that  in  very  early  times  a  distinct  special 
importance  belonged  to  them  as  the  instrument  or 
medium  of  exchange.  In  the  Homeric  literature,  they 
are  certainly  a  measure  of  value ;  there  seems  no  reason 
to  doubt  the  traditional  story  that  the  earliest  coined 
money  known  at  Rome  was  stamped  with  the  figure 
of  an  ox;  and  at  all  events  the  connection  between 
'pecus'and  'pecunia'  is  unmistakeable.  Part,  but 
by  no  means  all,  the  prominence  given  by  the  Brehon 
lawyers  to  horned  cattle  arises  certainly  from  their 
usefulness  in  exchange.  Throughout  the  Brehon 
tracts  fines,  dues,  rents,  and  returns  are  calculated 
in  live-stock,  not  exclusively  in  kine,  but  nearly  so. 
Two  standards  of  value  are  constantly  referred  to, 
*  sed'  and  'cumhal.'  '  Cumhal '  is  said  to  have  origi- 
nally meant  a  female  slave,  but  '  sed'  is  plainly  used 
for  an  amount  or  quantity  of  live  stock,  probably  to 
some  small  extent  variable.  The  next  stage,  however, 
in  the  history  of  cattle  is  that  at  which  their  service  to 
mankind  is  greatest.  They  are  now  valued  chiefly, 
in  some  communities  exclusively,  for  their  use  in 
tillage,  for  their  labour  and  their  manure.  Their 
place  has  been  taken  very  generally  in  Western 
Europe  by  horses  as  beasts  of  plough,  but  the  change 
was  even  there  both  gradual  and  comparatively  mo- 
dern; and  there  are  still  large  portions  of  the  world 
where  the  horse  is  exclusively  employed,  as  it  seems 
everywhere  to  have  been  at  one  time,  for  war,  for 


150  CATTLE  AND  SLAVERY.  laser.  71, 

pleasure,  or  the  chase.  Oxen  were  thus  almost  the 
sole  representatives  of  what  a  Political  Economist 
would  now  call  Capital  applied  to  land.  I  think  it 
probable  that  the  economical  causes  which  led  to 
the  disuse  of  oxen  as  a  medium  of  exchange  led  also 
to  the  change  in  their  legal  position  which  we  find  to 
have  taken  place  at  Rome  and  in  India.  The  sancti- 
fication  of  the  ox  among  the  Hindoos,  rendering  his 
flesh  unlawful  as  food,  must  certainly  have  been  con- 
nected with  the  desire  to  preserve  him  for  tillage, 
and  his  elevation  to  a  place  among  the  Res  Mancipi 
may  well  have  been  supposed  to  have  the  same  ten- 
dency, since  it  made  his  alienation  extremely  difficult, 
and  must  have  greatly  embarrassed  his  employment  in 
exchange.  At  this  point  the  history  of  horned  cattle 
becomes  unhappily  mixed  up  with  that  of  large  por- 
tions of  mankind.  The  same  causes  which  we  per- 
ceive altering  the  position  of  the  ox  and  turning  him 
into  an  animal  partially  adscriptus  glebce,  undoubtedly 
produced  also  a  great  extension  of  slavery.  The 
plentifulness  of  land,  even  in  what  are  considered  old 
countries,  down  to  comparatively  recent  times,  and 
the  scarcity  of  capital  even  in  its  rudest  forms,  seem 
to  me  to  be  placed  in  the  clearest  light  by  Mr.  Thorold 
Rogers's  deeply  instructive  volumes  on  Agriculture 
and  Prices  during  the  Middle  Ages ;  and  much  in  his- 
tory which  has  been  only  partially  intelligible  is  ex- 
plained by  them.  The  enormous  importation  of  slaves 


LECT.  n.      THE   IRISH  SYSTEM   OP   GIVING   STOCK.  151 

into  the  central  territories  of  the  Roman  Common- 
wealth, aud  the  wholesale  degradation  of  the  free  cul- 
tivating communities  of  Western  Europe  into  assem- 
blages of  villeins,  seem  to  be  expedients  of  the  same 
nature  as  restrictions  on  the  alienation  of  the  ox  and  on 
its  consumption  for  food,  and  to  have  been  alike  sug- 
gested by  the  same  imperious  necessity  of  procuring 
and  preserving  instruments  for  the  cultivation  of  land. 
The  importance  of  horned  cattle  to  men  in  a 
particular  state  of  society  must,  as  it  seems  to  me, 
be  carefully  borne  in  mind  if  we  are  to  understand 
one  of  the  most  remarkable  parts  of  the  ancient  Irish 
law  which  relates  to  the  practice  of  '  giving  stock.' 
I  stated  before  that,  though  I  did  not  draw  the 
same  inferences  from  the  fact,  I  agreed  with  the 
writers  who  think  that  the  land-system  of  ancient 
Ireland  was  theoretically  based  on  the  division  of  the 
tribe-lands  among  the  free  tribesmen.  But  I  also 
said  that  in  my  opinion  the  true  difficulty  of  those 
days  was  not  to  obtain  land  but  to  obtain  the  means 
of  cultivating  it.  The  want  of  capital,  taken  in  its 
original  sense,  was  the  necessity  which  pressed  on  the 
small  holder  of  land  and  reduced  him  occasionally  to 
f.he  sorest  straits.  On  the  other  hand,  the  great 
owners  of  cattle  were  the  various  Chiefs,  whose  pri- 
mitive superiority  to  the  other  tribesmen  in  this 
respect  was  probably  owing  to  their  natural  functions 
as  military  leaders  of  the  tribe.  The  Brehon  Jaw 


152  ORIGIN   OF   VASSALAGE   IN   IRELAND.        LECT.  YI, 

suggests  to  me  that  the  Chiefs  too  were  pressed  b}  a 
difficulty  of  their  own,  that  of  finding  sufficient  pas- 
turage for  their  herds.  Doubtless  their  power  over 
the  waste -lands  of  the  particular  group  over  which 
they  happened  to  preside  was  always  growing,  but 
the  most  fruitful  portions  of  the  tribal  territory  would 
probably  be  those  which  the  free  tribesmen  occupied. 
The  fact  that  the  wealth  of  the  Chiefs  in  cattle  was 
out  of  proportion  to  their  power  of  dealing  with  the 
tribal  lands,  and  the  fact  that  the  tribes  ra  en  were 
every  now  and  then  severely  pressed  by  the  necessity 
of  procuring  the  means  of  tillage,  appear  to  me  to 
supply  the  best  explanation  of  the  system  of  giving 
and  receiving  stock,  to  which  two  sub-tracts  of  the 
Senchus  Mor  are  devoted,  the  Cain-Saerrath  and  the 
Cain-Aigillne,  the  Law  of  Saer-stock  tenure  and  the 
Law  of  Daer-stock  tenure. 

The  interest  of  these  two  compendia  is  very  great. 
In  the  first  place,  they  go  far  to  show  us  how  it  was 
that  the  power  of  the  tribal  Chief  increased,  not  merely 
over  his  servile  dependants,  but  over  the  free  tribes- 
men among  whom  he  had  been  at  first  only  primus 
inter  pares.  In  the  next,  they  give  us,  from  the 
authentic  records  of  the  ancient  usages  of  one  par- 
ticular society,  a  perfectly  novel  example  of  a  pro- 
ceeding by  which  feudal  vassalage  was  created.  I 
need  scarcely  dwell  on  the  historical  importance  of 
the  various  agencies  by  which  the  relation  of  Lord 


LECT.  TT.  ROMAN  AND   FEUDAL   SOCIETY.  153 

and  Vassal  was  first  established.  It  was  by  them 
that  the  Western  Europe  of  the  Roman  despotism 
was  changed  into  the  Western  Europe  of  the  feudal 
sovereignties.  Nothing  can  be  more  strikingly  un- 
like in  external  aspect  than  the  states  of  society  which 
are  discerned  on  either  side  of  the  stormy  interval 
filled  with  the  movement  and  subsidence  of  the  bar- 
barian invasions.  Just  before  it  is  reached,  we  see  a 
large  part  of  mankind  arranged,  so  to  speak,  on  one 
vast  level  surface  dominated  in  every  part  by  the 
overshadowing  authority  of  the  Roman  Emperor.  On 
this  they  lie  as  so  many  equal  units,  connected  to- 
gether by  no  institutions  which  are  not  assumed  to 
be  the  creation  of  positive  Roman  law  ;  and  between 
them  and  their  sovereign  there  is  nothing  but  a  host 
of  functionaries  who  are  his  servants.  When  feudal 
Europe  has  been  constituted,  all  this  is  changed. 
Everybody  has  become  the  subordinate  of  somebody 
else  higher  than  himself  and  yet  exalted  above  him 
by  no  great  distance.  If  I  may  again  employ  an 
image  used  by  me  before,  society  has  taken  the  form 
of  a  pyramid  or  cone.  The  great  multitude  of  culti- 
vators is  at  its  base  ;  and  then  it  mounts  up  through 
ever-narrowing  sections  till  it  approaches  an  apex, 
not  always  visible,  but  always  supposed  to  be  dis- 
coverable, in  the  Emperor,  or  the  Pope,  or  God 
Almighty.  There  is  strong  reason  to  believe  that 
neither  picture  contains  all  the  actual  detail,  and 


154  BENEFICES  AND   COMMENDATION.  LECT.  VT 

that  neither  the  theory  of  the  Roman  lawyers  on  one 
side  nor  the  theory  of  the  feudal  lawyers  on  the  other 
accounts  for  or  takes  notice  of  a  number  of  customs 
and  institutions  which  had  a  practical  existence  in 
their  day.  Either  theory  was,  however,  founded  upon 
the  most  striking  facts  of  the  epoch  at  which  it  was 
framed. 

We  know  something,  though  not  very  much,  of 
the  formal  instrumentalities  by  which  the  later  set  of 
facts  became  so  extremely  dissimilar  to  the  earlier. 
Mr.  Stubbs  ('Constitutional  History,'  i.  252)  has 
thus  summarised  the  most  modern  views  on  the  sub- 
ject. Feudalism  '  had  grown  up  from  two  great 
sources,  the  Benefice  and  the  practice  of  Commen- 
dation. The  beneficiary  system  originated  partly  in 
gifts  of  land  made  by  the  kings  out  of  their  own 
estates  to  their  kinsmen  and  servants,  with  a  special 
undertaking  to  be  faithful,  partly  in  the  surrender  by 
landowners  of  their  estates  to  churches  or  powerful 
men,  to  be  received  back  again  and  held  by  them  as 
tenants  for  rent  or  service.  By  the  latter  arrange- 
ment the  weaker  man  obtained  the  protection  of  the 
stronger,  and  he  who  felt  himself  insecure  placed  his 
title  under  the  defence  of  the  Church.  By  the  prac- 
tice of  Commendation,  on  the  other  hand,  the  inferior 
put  himself  under  the  personal  care  of  a  lord,  but 
without  altering  his  title  or  divesting  himself  of  his 
right  to  his  estate;  he  became  a  vassal  and  did 


LBCT.  VI.  COMMENDATION.  155 

homage/  Commendation,  in  particular,  went  on  all 
over  Western  Europe  with  singular  universality  of 
operation  and  singular  uniformity  of  result,  and  it 
helped  to  transform  the  ancient  structure  of  Teutonic 
society  no  less  than  the  institutions  of  the  Roman 
Provincials.  Yet  there  is  considerable  mystery  about 
men's  motives  for  resorting  to  so  onerous  a  proceed- 
ing, and  the  statements  of  nearly  all  writers  on  the 
subject  are  general  and  chiefly  conjectural.  Perhaps 
the  most  precise  assertion  which  we  have  been  hitherto 
able  to  hazard  as  to  the  reasons  of  so  large  a  part  of 
the  world  for  voluntarily  placing  themselves  in  a 
condition  of  personal  subordination  is,  that  they  must 
have  been  connected  with  the  system  of  civil  and 
criminal  responsibility  which  prevailed  in  those  times. 
Families — real  or  artificial — natural  or  formed  by 
agreement — were  responsible  for  the  offences  and  even 
for  the  civil  liabilities  of  their  members ;  but  corporate 
responsibility  must  have  been  replaced,  conveniently 
for  all  persons  concerned,  by  the  responsibility  of  a 
single  lord,  who  could  prevent  injury  and  pay  com- 
pensation for  it,  and  whose  testimony,  in  compurga- 
tion  and  other  legal  proceedings,  had  a  weight  often 
assigned  to  it  exceeding  that  of  several  inferior  per- 
sons combined.  More  generally,  but  with  at  least 
equal  plausibility,  we  can  lay  down  that  the  general 
disorder  of  the  world  had  much  to  do  with  the 
growth  of  the  new  institutions ;  and  that  a  little 


106  CELTIC   OKIGIN   OP   COMMENDATION.          IECT.  vx 

society  compactly  united  under  a  feudal  lord  was 
greatly  stronger  for  defence  or  attack  than  any  body 
of  kinsmen  or  co- villagers  and  than  any  assemblage 
of  voluntary  confederates.  It  would  be  absurd, 
however,  to  suppose  that  we  have  materials  for  a 
confident  opinion  as  to  men's  motives  for  submitting 
themselves  to  a  change  which  was  probably  recom- 
mended to  them  or  forced  on  them  by  very  various 
circumstances  in  different  countries  and  in  relatively 
different  stages  of  society. 

I  do  not  wish  to  generalise  unduly  from  the  new 
information  furnished  by  the  Brehon  law,  but  there 
has  long  been  a  suspicion  (I  cannot  call  it  more) 
among  learned  men  that  Celtic  usages  would  throw 
some  light  on  Commendation,  and,  at  any  rate,  amid 
the  dearth  of  our  materials,  any  addition  to  them 
from  an  authentic  source  is  of  value.  Let  me  again 
state  the  impression  I  have  formed  of  the  ancient 
Irish  land- system,  in  the  stage  at  which  it  is  revealed 
to  us  by  the  Brehon  tracts.  The  land  of  the  tribe, 
whether  cultivated  or  waste,  belongs  to  the  tribe,  and 
this  is  true,  whether  the  tribe  be  a  joint-family  of 
kinsmen  or  a  larger  and  more  artificial  assemblage. 
Such  theoretically  is  the  principle,  if  the  traditional 
view  of  the  primitive  state  of  things  may  be  called  a 
theory.  But  much  of  the  territory  of  the  larger 
tribes  has  been  permanently  assigned  to  Chiefly  fami- 
lies or  to  smaller  sub-divisions  of  tribesmen,  and  the 


LECT.  YI.  THE   CHIEFS   AND   STOCK.  167 

2and  of  the  smaller  sub-divisions  tends  ever  to  become 
divided  among  their  members,  subject  to  certain  re- 
served rights  of  the  collective  brotherhood.  Every 
considerable  tribe,  and  almost  every  smaller  body  of 
men  contained  in  it,  is  under  a  Chief,  whether  he  be 
one  of  the  many  tribal  rulers  whom  the  Irish  records 
call  Kings,  or  whether  he  be  one  of  those  heads  of 
joint-families  whom  the  Anglo-Irish  lawyers  at  a 
later  date  called  the  Capita  Cognationum.  But  he  is 
not  owner  of  the  tribal  land.  His  own  land  he  may 
have,  consisting  of  private  estate  or  of  official  domain, 
or  of  both,  and  over  the  general  tribal  land  he  has  a 
general  administrative  authority,  which  is  ever  grow- 
ing greater  over  that  portion  of  it  which  is  unappro- 
priated waste.  He  is  meanwhile  the  military  leader 
of  his  tribesmen,  and,  probably  in  that  capacity,  he 
has  acquired  great  wealth  in  cattle.  It  has  somehow 
become  of  great  importance  to  him  to  place  out  por- 
tions of  his  herds  among  the  tribesmen,  and  they  on 
their  part  occasionally  find  themselves  through  stress 
of  circumstance  in  pressing  need  of  cattle  for  employ- 
ment in  tillage.  Thus  the  Chiefs  appear  in  the  Brehon 
law  as  perpetually  '  giving  stock,'  and  the  tribesmen 
as  receiving  it.  The  remarkable  thing  is,  that  out  of 
this  practice  grew,  not  only  the  familiar  incidents  of 
ownership,  such  as  the  right  to  rent  and  the  liability 
to  pay  it,  together  with  some  other  incidents  less 
pleasantly  familiar  to  the  student  of  Irish  history, 


168  SAER   AND   DAEB   TENANTS.  EECT.  VI 

but,  above  and  besides  these,  nearly  all  the  well- 
known  incidents  of  feudal  tenure.  It  is  by  taking 
stock  that  the  free  Irish  tribesman  becomes  the  Ceile 
or  Kyle,  the  vassal  or  man  of  his  Chief,  owing  him 
not  only  rent  but  service  and  homage.  The  exact 
effects  of  'commendation'  are  thus  produced,  and  the 
interesting  circumstance  is  that  they  are  produced  from 
a  simple  and  intelligible  motive.  The  transaction  be- 
tween Chief  and  Vassal  is  very  burdensome  to  the 
latter,  but  the  necessity  which  leads  to  it  is  pressing, 
and  the  force  of  this  necessity  would  be  greater  the 
more  primitive  the  society  in  which  it  arose,  and  the 
more  recent  its  settlement  on  its  lands.  All  this  is 
especially  instructive,  because  there  is  no  reason 
whatever  to  suppose  that  Beneficiary  grants  and 
Commendation  arose  suddenly  in  the  world  at  the 
disruption  of  the  Roman  Empire.  They  were  pro- 
bably, in  some  form  or  other,  deeply  seated  among 
the  rudimentary  usages  of  all  Aryan  societies. 

The  new  position  which  the  tribesman  assumed 
through  accepting  stock  from  a  Chief  varied  according 
to  the  quantity  of  stock  he  received.  If  he  took  much 
stock  he  sank  to  a  much  lower  status  than  if  he  had 
taken  little.  On  this  difference  in  the  quantity  ac- 
cepted there  turns  the  difference  between  the  two 
great  classes  of  Irish  tenantry,  the  Saer  and  Daer 
tenants,  between  whose  status  and  that  of  the 
free  and  higher  base  tenants  of  an  English  manor 


LECT.  -vi.  SAEH-STOCK  TENANCY.  150 

there  is  a  resemblance  not  to  be  mistaken.  The 
Saer-stock  tenant,  distinguished  by  the  limited 
amount  of  stock  which  he  received  from  the  Chief, 
remained  a  freeman  and  retained  his  tribal  rights  in 
their  integrity.  The  normal  period  of  his  tenancy 
was  seven  years,  and  at  the  end  of  it  he  became  en- 
titled to  the  cattle  which  had  been  in  his  possession. 
Meantime  he  had  the  advantage  of  employing  them 
in  tillage,  and  the  Chief  on  his  part  received  the 
4  growth  and  increase  and  milk,'  the  first  two  words 
implying  the  young  and  the  manure.  So  far  there  is 
nothing  very  remarkable  in  the  arrangement,  but  it 
is  expressly  laid  down  that  besides  this  it  entitled 
the  Chief  to  receive  homage  and  manual  labour ; 
manual  labour  is  explained  to  mean  the  service  of  the 
vassal  in  reaping  the  Chief's  harvest  and  in  assisting 
to  build  his  castle  or  fort,  and  it  is  stated  that,  in  lieu 
of  manual  labour,  the  vassal  might  be  required  to 
follow  his  Chief  to  the  wars.  Any  large  addition  to 
the  stock  deposited  with  the  Saer-stock  tenant,  or  an 
unusual  quantity  accepted  in  the  first  instance  by  the 
tribesman,  created  the  relation  between  vassal  and 
chief  called  Daer-stock  tenancy.  The  Daer-stock 
tenant  had  unquestionably  parted  with  some  portion 
of  his  freedom,  and  his  duties  are  invariably  referred 
to  as  very  onerous.  The  stock  given  to  him  by  the 
Chief  consisted  of  two  portions,  of  which  one  was  pro- 
portionate to  the  rank  of  the  recipient,  the  other  to  the 


160  DAEK-STOCK  TENANCY.  IECT.  rr. 

rent  in  kind  to  which  the  tenant  became  liable.  The 
technical  standard  of  the  first  was  the  tenant's  'honor- 
price,'  the  fine  or  damage  which  was  payable  for  in- 
juring him,  and  which  in  these  ancient  systems  of 
law  varies  with  the  dignity  of  the  person  injured. 
The  relation  between  the  second  portion  of  stock  and 
the  rent  is  elaborately  defined  in  the  Brehon  law : 
'  The  proportionate  stock  of  a  calf  of  the  value  of  a 
sack  with  its  accompaniments,  and  refections  for  three 
persons  in  the  summer,  and  work  for  three  days,  is 
three  "sam-haisc"  heifers  or  their  value'  ('Cain- 
Aigillne,'  p.  25);  or,  in  other  words,  that  the  Chief 
may  entitle  himself  to  the  calf,  the  refections,  and 
the  labour,  he  must  deposit  three  heifers  with  the 
tenant.  *  The  proportionate  stock  of  a  "  dartadh  " 
heifer  with  its  accompaniment,  is  twelve  "  seds,"  ' 
explained  to  mean  twelve  *  sam-haisc  '  heifers,  or  six 
cows.  And  so  on  in  many  places.  The  rent  in  kind, 
or  food-rent,  which  was  thus  proportioned  to  the 
stock  received,  unquestionably  developed  in  time  into 
a  rent  payable  in  respect  of  the  tenant's  land;  but  it 
is  certainly  a  curious  and  unexpected  fact  that  the 
rent  of  the  class  which  is  believed  to  have  embraced 
a  very  large  part  of  the  ancient  Irish  tenantry  did 
not,  in  its  earliest  form,  correspond  in  any  way  to  the 
value  of  the  tenant's  land,  but  solely  to  the  value  of 
the  Chief's  property  deposited  with  the  tenant.  But 
the  most  burdensome  obligation  imposed  on  the  Daer- 


LKCT.  vi.  THE   RIGHT   OF    REFECTION.  ItJl 

stock  tenant  is  that  which,  in  the  quotation  just  made 
by  me,  is  expressed  by  the  word  '  refections.'  Beside 
the  rent  in  kind  and  the  feudal  services,  the  Chief 
who  had  given  stock  was  entitled  to  come,  with  a 
company  of  a  certain  number,  and  feast  at  the  Daer- 
stock  tenant's  house,  at  particular  periods,  for  a 
fixed  number  of  days.  This  '  right  of  refection,' 
arid  liability  to  it,  are  among  the  most  distinctive 
features  of  ancient  Irish  custom,  and  their  origin  is 
probably  to  be  explained  by  the  circumstance  that 
the  Irish  Chief,  though  far  more  privileged  than  his 
tenants,  was  little  better  housed  and  almost  as  poorly 
furnished  out,  and  could  not  have  managed  to  con- 
sume at  home  the  provisions  to  which  his  gifts  of 
stock  entitled  him.  But  the  practice  had  a  most  un- 
happy history.  The  Brehon  law  defines  it  and  limits 
it  narrowly  on  all  sides ;  but  its  inconvenience  and 
its  tendency  to  degenerate  into  an  abuse  are  manifest, 
and  from  it  are  doubtless  descended  those  oppressions 
which  revolted  such  English  observers  of  Ireland  as 
Spenser  and  Davis,  the  '  coin  and  livery,'  and  the 
'cosherings'  of  the  Irish  Chiefs,  which  they  denounce 
with  such  indignant  emphasis.  Perhaps  there  was 
no  Irish  usage  which  seemed  to  Englishmen  so  amply 
to  justify  that  which  as  a  whole  I  believe  to  have 
been  a  great  mistake  and  a  great  wrong,  the  entire 
judicial  or  legislative  abolition  of  Irish  customs.  The 
precautions  by  which  the  Brehon  lawyers  could  fence 

M 


162  DAER-STOCK   AND    METAYER   TENANCY.         LECT.  vi, 

it  in  were  not  probably  at  any  time  very  effectual, 
but,  as  I  before  stated,  they  did  what  they  could ; 
and,  moreover,  as  denned  by  them,  the  relation  out 
of  which  Daer-stock  tenancy  and  its  peculiar  obliga- 
tions arose  was  not  perpetual.  After  food-rent  and 
service  had  been  rendered  for  seven  years,  if  the  Chief 
died,  the  tenant  became  entitled  to  the  stock ;  while, 
on  the  other  hand,  if  the  tenant  died,  his  heirs  were 
partly,  though  not  wholly,  relieved  from  their  obliga- 
tion. At  the  same  time  it  is  very  probable  that 
Daer-stock  tenancy,  which  must  have  begun  in  the 
necessities  of  the  tenant,  was  often  from  the  same 
cause  rendered  practically  permanent. 

It  has  frequently  been  conjectured  that  certain 
incidents  of  feudal  tenure  pointed  back  to  some  such 
system  as  the  Brehon  tracts  describe  to  us.  The 
Heriot  of  English  Copyhold  tenure,  the  '  best  beast ' 
taken  by  the  Lord  on  the  death  of  a  base  tenant,  has 
been  explained  as  an  acknowledgment  of  the  Lord's 
ownership  of  the  cattle  with  which  he  anciently 
stocked  the  land  of  his  villeins,  just  as  the  Heriot  of 
the  military  tenant  is  believed  to  have  had  its  origin 
in  a  deposit  of  arms.  Adam  Smith  recognised  the 
great  antiquity  of  the  Metayer  tenancy,  still  widely 
spread  over  the  Continent,  of  which  one  variety  was 
in  his  day  found  in  Scotland  under  the  name  of 
*  steelbow.'  I  am  not  at  all  surprised  that,  in  one  of 
the  Prefaces  to  the  official  translation  of  the  Brehon 


LECT.  vi.         EULES    AS   TO    ACCEPTANCE    OF   STOCK.  1C3 

laws,  a  comparison  should  be  instituted  between  this 
tenancy  and  the  Saer  and  Daer-stock  tenancy  of  an- 
cient Irish  law.  The  outward  resemblance  is  consi- 
derable, and  the  history  of  Metayer  tenancy  is  so 
obscure  that  I  certainly  cannot  undertake  to  say  that 
practices  answering  to  those  I  have  described  had 
not  in  some  countries  something  to  do  with  its  primi- 
tive form.  But  the  distinctions  between  the  ancient 
and  the  modern  tenancies  are  more  important  than  the 
analogies.  In  Metayer  tenancy  a  landlord  supplies 
the  land  and  stock,  a  tenant  the  labour  only  and  the 
skill;  but  in  Saer  and  Daer-stock  tenancy  the  land 
belonged  to  the  tenant.  Again,  the  effect  of  the 
ancient  Irish  relation  was  to  produce,  not  merely  a 
contractual  liability,  but  a  status.  The  tenant  had 
his  social  and  tribal  position  distinctly  altered  by 
accepting  stock.  Further,  the  acceptance  of  stock 
was  not  always  voluntary.  A  tribesman,  in  one 
stage  of  Irish  custom  at  all  events,  was  bound  to 
receive  stock  from  his  own  *  King,'  or,  in  other  words, 
from  the  Chief  of  his  tribe  in  its  largest  extension ; 
\nd  everywhere  the  Brehon  laws  seem  to  me  to 
speak  of  the  acceptance  of  stock  as  a  hard  necessity. 
Lastly,  the  Tribe  to  which  the  intending  tenant 
belonged  had  in  some  cases  a  veto  on  his  adoption  of 
the  new  position,  which  was  clearly  regarded  as  a 
proceeding  invasive  of  tribal  rights  and  calculated  to 
enfeeble  them.  In  order  to  give  the  Tribe  the  oppor- 


1G4  EFFECTS   OF  THE   ACCEPTANCE   OF  STOCK.     LECT.  n. 

tunity  of  interposing  whenever  it  had  legal  power  to 
do  so,  the  acceptance  of  stock  had  to  be  open  and 
public,  and  the  consequences  of  effecting  it  surrep- 
titiously are  elaborately  set  forth  by  the  law.  It 
seems  to  me  clear  that  it  was  discouraged  by  the 
current  popular  morality.  One  of  those  rules, 
frequent  in  ancient  bodies  of  law,  which  are  rather 
moral  precepts  than  juridical  provisions,  declares  that 
'  no  man  should  leave  a  rent  on  his  land  which  he 
did  not  find  there.' 

The  system  which  I  have  been  describing  must 
have  contributed  powerfully  to  dissolve  the  more 
ancient  tribal  and  family  organisation.  If  the  Chiet 
who  gave  and  the  Ceile  who  accepted  stock  belonged 
to  the  same  Tribe,  the  effect  of  the  transaction  was  to 
create  a  relation  between  them,  not  indeed  altogether 
unlike  that  of  tribal  connection,  but  still  materially 
different  from  it  in  many  respects  and  much  more  to 
the  advantage  of  the  chieftain.  But  the  superior 
from  whom  a  man  took  stock  was  not  always  the 
Chief  of  his  own  Sept  or  Tribe.  So  far  as  the  Brehon 
law  can  be  said  to  show  any  favour  to  the  new 
system  of  vassalage,  it  encourages  it  between  natural 
chief  and  natural  tribesman;  and,  on  the  other  hand, 
it  puts  difficulties  in  its  way  when  there  is  an  attempt 
to  establish  it  between  a  tribesman  and  a  strange 
Chief.  But  there  seem  to  be  abundant  admissions 
that  freemen  did  occasionally  commend  themselves  in 


LECT.  TI.      THE   KING   OF  ERIN   AND   THE   EMPEROR.  166 

this  way  to  superiors  other  than  their  Chiefs.  Every 
nobleman,  as  I  said  before,  is  assumed  TO  be  as  a  rule 
rich  in  cattle,  and  it  appears  to  have  been  an  object 
with  everyone  to  disperse  his  herds  by  the  practice  of 
giving  stock.  The  enriched  peasant  who  was  on  his 
way  to  be  ennobled,  the  Bo-aire,  seems  to  have  had 
Ceiles  who  accepted  stock  from  him,  as  well  as  had 
the  nobles  higher  in  degree.  Accordingly,  the  new 
groups  formed  of  the  Lord  and  his  Vassals — if  we  may 
somewhat  antedate  these  last  words — were  sometimes 
wholly  distinct  from  the  old  groups  composed  of  the 
Chief  and  his  Clan.  Nor,  again,  was  the  new  relation 
confined  to  Aires,  or  noblemen,  and  Ceiles,  or  free 
but  non-noble  tribesmen.  The  Bo-aire  certainly,  and 
apparently  the  higher  Chiefs  also,  accepted  stock  on 
occasion  from  chieftains  more  exalted  than  them- 
selves ;  and  in  the  end  to  '  give  stock  '  came  to  mean 
the  same  thing  as  to  assert  feudal  superiority,  and  to 
1  accept  stock  '  the  same  thing,  which  in  the  language 
of  other  societies  was  called  *  commendation.'  It  is 
strong  evidence  of  the  soundness  of  the  conclusions 
reached  of  late  years  by  historical  scholars  (and, 
among  others,  by  Mr.  Bryce),  as  to  the  deep  and  wide 
influence  exercised  by  the  Roman  Empire,  even  in 
its  later  form,  that  (of  course  by  a  fiction)  the  Brehon 
law  represents  the  King  of  Ireland  as  *  accepting 
stock  '  from  the  Emperor.  '  When  the  King  of  Erin 
is  without  opposition' — that  is,  as  the  explanation 


166  THE   GERMS   OF  FEUDALISM.  MCI.  n. 

rims,  when  he  holds  the  ports  of  Dublin,  Waterford, 
and  Limerick,  which  were  usually  in  the  hands  of  the 
Danes — '  he  receives  stock  from  the  King  of  the  Ro- 
mans '  (S.  M.,  ii.  225).  The  commentary  goes  on  to 
say  that  sometimes  4  it  is  by  the  successor  of  Patrick 
that  the  stock  is  given  to  the  King  of  Erin ; '  and  this 
remarkable  passage  seems  to  show  that  an  Irish  writer 
spoke  of  the  successor  of  St.  Patrick,  where  a  writer 
of  the  same  approximate  period  in  England  or  on  the 
European  Continent  would  assuredly  have  spoken  of 
the  Pope. 

I  hope  it  is  unnecessary  for  me  to  insist  on  the 
interest  which  attaches  to  this  part  of  the  Brehon  law. 
It  has  been  not  uncommon,  upon  the  evidence  fur- 
nished by  the  usages  of  the  Scottish  Highlanders, 
sharply  to  contrast  Celtic  tribal  customs  with  feudal 
rules ;  and  doubtless  between  these  customs  and 
feudalism  in  its  perfected  state  there  are  differences 
of  the  greatest  importance.  Yet,  if  the  testimony  of 
the  Brehon  tracts  may  be  trusted,  such  differences 

V  ' 

arose,  not  from  essential  distinctions,  but,  in  some 
measure  at  all  events,  from  distinctions  of  degree  in 
comparative  social  development.  The  germs  of  feu- 
dalism lay  deep  in  the  more  ancient  social  forms,  and 
were  ready  to  assert  their  vitality  even  in  a  country 
like  Ireland,  which,  after  it  was  once  Christianised, 
can  have  borrowed  next  to  no  institutions  from  its 
neighbours,  cut  off  as  it  was  from  the  Continent  by 


LKCT.  TI.     INDEBTEDNESS   OP   ANCIENT   DEMOCRACIES.          167 

distance,  and  from  England  by  stubborn  national 
repulsion.  It  is  also  worthy  of  observation  that  this 
natural  growth  of  feudalism  was  not,  as  some  eminent 
recent  writers  have  supposed,  entirely  distinct  from 
the  process  by  which  the  authority  of  the  Chief  or 
Lord  over  the  Tribe  or  Village  was  extended,  but 
rather  formed  part  of  it.  While  the  unappropriated 
waste  lands  were  falling  into  his  domain,  the  villagers 
or  tribesmen  were  coming  through  natural  agencies 
under  his  personal  power. 

The  Irish  practice  of  '  giving  stock '  seems  to  me 
also  to  connect  itself  with  another  set  of  phenomena 
which  have  generally  been  thought  to  belong  to  a 
very  different  stage  of  history.  We  obtain  from  the 
law- tracts  a  picture  of  an  aristocracy  of  wealth  in  its 
most  primitive  form;  and  we  see  that  the  possession 
of  this  wealth  gave  the  nobles  an  immense  power  over 
the  non-noble  freemen  who  had  nothing  but  their 
land.  Caesar  seems  to  me  to  be  clearly  referring  to 
the  same  state  of  relations  in  the  Celtic  sister  society, 
when  he  speaks  of  the  Gaulish  chiefs,  the  Equites, 
having  one  principal  source  of  their  influence  in  the 
number  of  their  debtors.  (B.  G.  i.  4;  B.  G.  vi.  13.) 
Now,  you  will  remember  how  uniformly,  when 
our  knowledge  of  the  ancient  world  commences,  we 
find  plebeian  classes  deeply  indebted  to  aristocratic 
orders.  At  the  beginning  of  Athenian  history  we 
find  the  Athenian  commonalty  the  bondslaves  through 


168  IMPORTANCE   OF  LAND   AND   CAPITAL.         MOT.  vi. 

debt  of  the  Eupatrids ;  at  the  beginning  of  Roman 
history  we  find  the  Roman  Commons  in  money  bond- 
age to  the  Patricians.  The  fact  has  been  accounted 
for  in  many  ways,  and  it  has  been  plausibly  suggested 
that  it  was  the  occurrence  of  repeated  bad  seasons 
which  placed  the  small  farmers  of  the  Attic  and 
Roman  territory  at  the  mercy  of  wealthy  nobles. 
But  the  explanation  is  imperfect  unless  we  kee"p  in 
mind  the  chief  lesson  of  these  Brehon  tracts,  and  recol- 
lect that  the  relative  importance  of  Land  and  Capital 
has  been  altering  throughout  history.  The  general 
proposition  that  Land  is  limited  in  quantity  and  is 
distinguished  by  this  limitation  from  all  other  com- 
modities which  are  practically  capable  of  indefinite 
multiplication,  has  always  of  course  been  abstractedly 
true  ;  but,  like  many  other  principles  of  Political 
Economy,  its  value  depends  on  the  circumstances  to 
which  it  is  applied.  In  very  ancient  times  land  was 
a  drug,  while  capital  was  extremely  perishable,  added 
to  with  the  greatest  difficult}',  and  lodged  in  very  few 
hands.  The  proportionate  importance  of  the  two 
requisites  of  cultivation  changed  very  slowly,  and  it 
is  only  quite  recently  that  in  some  countries  it  has 
been  well-nigh  reversed.  The  ownership  of  the 
instruments  of  tillage  other  than  the  land  itself  was 
thus,  in  early  agricultural  communities,  a  power  of 
the  first  order,  and,  as  it  may  be  believed  that  a  stock 
of  the  primitive  capital  larger  than  usual  was  very 


LECT.  vi.  T1IE    ERIC-FINE.  169 

generally  obtained  by  plunder,  we  can  understand 
that  these  stocks  were  mostly  in  the  hands  of  noble 
classes  whose  occupation  was  war,  and  who  at  all 
events  had  a  monopoly  of  the  profits  of  office.  The 
advance  of  capital  at  usurious  interest,  and  the  helpless 
degradation  of  the  borrowers,  were  the  natural  re- 
sults of  such  economical  conditions.  For  the  honour 
of  the  obscure  and  forgotten  Brehon  writers  of  the 
Cain-Saerrath  and  the  Cain-Aigillne,  let  it  not  be 
forgotten  that  their  undertaking  was  essentially  the 
same  as  that  which  went  far  to  immortalise  one  great 
Athenian  legislator.  By  their  precise  and  detailed 
statements  of  the  proportion  which  is  to  be  preserved 
between  the  stock  which  the  Chief  supplies  and  the 
returns  which  the  tenant  pays,  they  plainly  intend 
to  introduce  certainty  and  equity  into  a  naturally 
oppressive  system.  Solon,  dealing  with  a  state  of 
society  in  which  coined  money  had  probably  not  long 
taken  the  place  of  something  like  the  ;  seds '  of 
the  Brehon  law,  had  no  expedient  open  to  him  but 
the  debasement  of  the  currency  and  the  cancellation 
of  debts ;  but  he  was  attacking  the  same  evil  as  the 
Brehon  lawyers,  and  equally  interfering  with  that 
freedom  of  contract  which  wears  a  very  different 
aspect  according  to  the  condition  of  the  society  in 
which  it  prevails. 

The  great  part  played  in  the  Brehon  law  by  Cattle 
as  the  oldest  form  of  Capital  ought  further  to  leave 


170  THE  ERIC-FINE.  LECT.  vi. 

no  doubt  of  the  original  objects  of  the  system  of 
'eric' -fines,  or  pecuniary  composition  for  violent  crime. 
As  I  said  before,  no  Irish  institution  was  so  strongly 
denounced  by  Englishmen  as  this,  or  with  so  great  a 
show  of  righteous  indignation.  As  members  of  a 
wealthy  community,  long  accustomed  to  a  strong 
government,  they  were  revolted  partly  by  its  apparent 
inadequacy  and  partly  the  unjust  impunity  which  it 
seemed  to  give  to  the  rich  man  and  to  deny  to  the 
poor.  Although  the  English  system  of  criminal 
penalties  which  they  sought  to  substitute  for  the 
Irish  system  of  compositions  would  nowadays  be 
described  by  an  ordinary  writer  in  pretty  much  as 
dark  colours  as  those  used  by  Spenser  and  Davis  for 
the  Irish  institution,  it  is  very  possible  that  in  the 
sixteenth  century  it  would  have  been  an  advantage 
to  Ireland  to  have  the  English  procedure  and  the 
English  punishments.  There  is  much  evidence  that 
the  usefulness  of  '  eric  '-fines  had  died  out,  and  that 
they  unjustly  profited  the  rich  and  powerful.  But 
that  only  shows  that  the  confusions  of  Ireland  had 
kept  alive  beyond  its  time  an  institution  which  in 
the  beginning  had  been  a  great  step  forwards  from 
barbarism.  If  the  modern  writers  who  have  spoken 
harshly  of  these  pecuniary  compositions  had  come 
upon  a  set  of  usages  belonging  to  a  society  in  which 
tribe  was  perpetually  struggling  with  tribe,  and  in 
which  life  was  held  extraordinarily  cheap,  and  had 


LBCT.  n.  ETYMOLOGY   OF   FEUD.  171 

found  that,  by  this  customary  law,  the  sept  or  family 
to  which  the  perpetrator  of  a  crime  belonged  forfeited 
a  considerable  portion  of  its  lands,  I  am  not  sure  that 
they  would  not  have  regarded  the  institution  as 
showing  for  the  age  an  extremely  strict  police.  But 
in  the  infancy  of  society  a  fine  on  the  cultivating 
communities,  of  the  kind  afterwards  called  pecuniary, 
was  a  much  severer  punishment  than  the  forfeiture  of 
land.  They  had  plenty  of  land  within  their  domains, 
but  very  slight  appliances  for  cultivating  it ;  and  it 
was  out  of  these  last  that  compositions  were  paid. 
The  system  of  course  lost  its  meaning  as  the  commu- 
nities broke  up  and  as  property  became  unequally 
divided.  In  its  day,  nevertheless,  it  had  been  a  great 
achievement,  and  there  are  traces  of  it  everywhere, 
even  in  Roman  law,  where,  however,  it  is  a  mere 
survival. 

Before  I  quit  the  subject  let  me  say  something  on 
the  etymology  of  the  famous  word,  Feodum,  Feud,  or 
Fief.  The  derivation  from  Emphyteusis  is  now  alto- 
gether abandoned,  and  there  is  general,  though  not 
quite  universal,  agreement  that  Feodum  is  descended 
from  one  or  other  of  the  numerous  family  of  old 
Teutonic  terms  which  have  their  present  representa- 
tive in  the  modern  German  vieh,  '  cattle.'  There  is 
supposed  to  have  been  much  the  same  transmutation 
of  meaning  which  occurred  with  the  analogous  Latin 
word.  Pecunia,  allied  to  pecus,  signified  first  money, 


172  SERVILE   CLASSES    ON   TRIBAL   TERRITORY.    LECT.  Tt 

and  tlien  property  geneTally;  the  Roman  lawyers,  in 
fact,  tell  us  that  it  is  the  most  comprehensive  term  for 
all  a  man's  property ;  and  in  the  same  way  '  feodum ' 
is  supposed  to  have  come  to  mean  c  property,'  from 
having  originally  meant  '  cattle.'  The  investigations 
we  have  been  pursuing  may  perhaps,  however,  suggest 
that  the  connection  of  '  feodum '  with  cattle  is  closer 
and  more  direct  than  this  theory  assumes.  Dr.  Sulli- 
van, I  ought  to  add,  assigns  a  different  origin  to 
'feodum'  from  any  hitherto  put  forward  (Introd. 
p.  ccxxvi.).  He  claims  it  as  a  Celtic  word,  and  con- 
nects it  with  fuidhir,  the  name  of  a  class  of  denizens 
on  tribal  territory  whose  status  I  am  about  to  discuss. 
The  territory  of  every  Irish  tribe  appears  to  have 
had  settled  on  it,  besides  the  Saer  and  Daer  Ceiles, 
certain  classes  of  persons  whose  condition  was  much 
nearer  to  slavery  than  that  of  the  free  tribesman  who, 
by  accepting  stock  from  the  Chief,  had  sunk  lowest 
from  his  original  position  in  the  tribal  society.  They 
are  called  by  various  names,  Sencleithes,  Bothachs, 
and  Fuidhirs  ;  and  the  two  last  classes  are  again  sub- 
divided, like  the  Ceiles,  into  Saer  and  Daer  Bothachs 
and  Saer  and  Daer  Fuidhirs.  There  is  evidence  in 
the  tracts,  and  especially  in  the  unpublished  tract 
called  the  '  Corus  Fine,'  that  the  servile  dependants, 
like  the  freemen  of  the  territory,  had  a  family  or 
tribal  organisation  ;  and  indeed  all  fragments  of  a 
society  like  that  of  ancient  Ireland  take  more  or  Ires 


.  rr.  THE   FUIDHIR   TENANTS.  173 

the  shape  of  the  prevailing  model.  The  position  of 
the  classes,  obscurely  indicated  in  Domesday  and 
other  ancient  English  records  as  Cotarii  and  Bordarii, 
was  probably  very  similar  to  that  of  the  Sencleithes 
and  Bothachs  ;  and  in  both  cases  it  has  been  suspected 
that  these  servile  orders  had  an  origin  distinct  from 
that  of  the  dominant  race,  and  belonged  to  the  older 
or  aboriginal  inhabitants  of  the  country.  Families  or 
sub-tribes  formed  out  of  them  were  probably  hewers 
of  wood  and  drawers  of  water  to  the  ruling  tribe  or 
its  subdivisions.  Others  were  certainly  in  a  condition 
of  special  servitude  to  the  Chief  or  dependence  on 
him  ;  and  these  last  were  either  engaged  in  culti- 
vating his  immediate  domain-land  and  herding  his 
cattle,  or  were  planted  by  him  in  separate  settle- 
ments on  the  waste  land  of  the  tribe.  The  rent  or 
service  which  they  paid  to  him  for  the  use  of  this 
land  was  apparently  determinable  solely  by  the 
pleasure  of  the  Chief. 

Much  the  most  important,  and  much  the  most  in- 
teresting of  these  classes  from  the  historical  point  of 
view,  was  that  just  described  as  settled  by  the  Chief 
on  the  unappropriated  tribal  lands.  Indeed,  it  has 
been  suggested  that  its  fortunes  are  identical  with 
those  of  the  great  bulk  of  the  Irish  people.  It  con- 
sisted of  the  Fuidhirs,  the  strangers  or  fugitives  from 
other  territories,  men,  in  fact,  who  had  broken  the 
original  tribal  bond  which  gave  them  a  place  in  the 


174  THE   FUIDHIR   TENANTS.  LECT.  n. 

community,  and  who  had  to  obtain  another  as  best 
they  might  in  a  new  tribe  and  a  new  place.  The 
Brehon  law  shows  by  abundant  evidence  that  the 
class  must  have  been  a  numerous  one.  The  deser- 
tion of  their  lands  by  families  or  portions  of  families 
is  repeatedly  spoken  of.  Under  certain  circumstances, 
indeed,  the  rupture  of  the  tribal  bond  and  the  flight 
of  those  who  break  it  are  eventualities  distinctly  con- 
templated by  the  law.  In  the  Brehon  law,  as  in 
other  ancient  juridical  systems,  the  corporate  respon- 
sibility of  tribes,  sub-tribes,  and  families  takes  the 
place  of  that  responsibility  for  crime,  and  even  to 
some  extent  of  civil  obligation,  which,  under  modern 
institutions,  presses  upon  the  individual.  But  the 
responsibility  might  be  prevented  from  attaching 
by  compelling  or  inducing  a  member  of  the  group, 
habitually  violent  or  vowed  to  revenge,  to  withdraw 
from  its  circle  ;  and  the  Book  of  Aicill  gives  the  legal 
procedure  which  is  to  be  observed  in  the  expulsion, 
the  tribe  paying  certain  fines  to  the  Chief  and  the 
Church  and  proclaiming  the  fugitive.  Such  provi- 
sions assume  a  certain  order  in  the  society  to  which 
they  apply;  yet  we  know  as  a  fact  that  for  many 
centuries  it  was  violently  disordered.  The  result  was 
probably  to  fill  the  country  with  *  broken  men/  and 
such  men  could  only  find  a  home  and  protection  by 
becoming  Fuidhir  tenants.  Everything,  in  short, 
which  tended  to  disturb  the  Ireland  of  the  Brehon 
laws  tended  to  multiply  this  particular  class. 


LECT.  vi.  RENT   PAID   BY  FU1DHIRS.  175 

Now,  the  Fuidhir  tenant  was  exclusively  a  depen- 
dant of  the  Chief,  and  was  through  him  alone  con- 
nected with  the  Tribe.  The  responsibility  for  crime, 
which  in  the  natural  state  of  Irish  society  attached  to 
the  Family  or  Tribe,  attached,  in  the  case  of  the  Fuid- 
hir, to  the  Chief,  who  in  fact  became  to  this  class  of 
tenants  that  which  their  original  tribesmen  or  kindred 
had  been.  Moreover,  the  land  which  they  cultivated 
in  their  place  of  refuge  was  not  theirs  but  his.  They 
were  the  first  *  tenants  at  will'  known  to  Ireland, 
and  there  is  no  doubt  that  they  were  always  theo- 
retically rackrentable.  The  '  three  rents.'  says  the 
Senchus  Mor,  are  the  '  rackrent  from  a  person  of  a 
strange  tribe,  a  fair  rent  from  one  of  the  tribe,  and  the 
stipulated  rent  which  is  paid  equally  by  the  tribe  and 
the  strange  tribe.'  The  '  person  from  a  strange  tribe  ' 
is  undoubtedly  the  Fuidhir;  and  though  the  Irish 
expression  translated  l  rackrent '  cannot,  of  course, 
in  the  ancient  state  of  relation  between  population 
and  land,  denote  an  extreme  competition  rent,  it 
certainly  indicates  an  extreme  rent ;  since  in  one  of 
the  glosses  it  is  graphically  compared  to  the  milk  of 
a  cow  which  is  compelled  to  give  milk  every  month 
to  the  end  of  the  year.  At  the  same  time  there  is 
no  reason  to  suppose  that,  in  the  first  instance,  the 
Fuidhir  tenants  were  oppressively  treated  by  the 
Chiefs.  The  Chief  had  a  strong  interest  in  encouraging 
them  ;  '  he  brings  in  Fuidhirs,'  says  one  of  the  tracts, 


178  AGRICULTURAL   CLASSES    IN    ORISSA.  U5CT.  TX. 

*  to  increase  his  wealth.'  The  interests  really  injured 
were  those  of  the  Tribe,  which  may  have  become 
stronger  for  defence  or  attack  by  the  addition  to  the 
population  of  the  territory,  but  which  certainly  suf- 
fered as  a  body  of  joint  proprietors  by  the  curtail- 
ment of  the  waste  land  available  for  pasture.  The 
process  before  described  by  which  the  status  of  the 
tribesmen  declined  proportionately  to  the  growth  of 
the  Chiefs'  powers,  must  have  been  indirectly  hastened 
in  several  ways  by  the  introduction  of  Fuidhirs. 
Such  indications  of  the  course  of  change  as  the  Bre- 
hon  laws  furnish  are  curiously  in  harmony  with  a 
passage  from  a  work  recently  published,  which,  amid 
much  other  valuable  matter,  gives  a  most  vivid  pic- 
ture of  agricultural  life  in  the  backward  Indian  pro- 
vince of  Orissa.  Mr.  Hunter,  the  writer,  is  speaking 
of  the  relation  of  landlord  and  tenant ;  but  as  the 
4  hereditary  peasantry '  referred  to  have,  as  against 
their  landlord,  rights  defined  by  law,  they  are  not 
without  analogy  to  the  tribesmen  of  an  ancient  Irish 
territory.  *  The  migratory  husbandman/  the  Fuid- 
hir  of  modern  India,  'not  only  lost  his  hereditary 
position  in  his  own  village,  but  he  was  an  object  of 
dislike  and  suspicion  among  the  new  community  into 
which  he  thrust  himself.  For  every  accession  of 
cultivators  tended  to  better  the  position  of  the  land- 
lord, and  pro  tanto  to  injure  that  of  the  (older)  culti- 
vators. So  long  as  the  land  on  an  estate  continued 


IECT.  vi.         IMPORTANCE   OF   FUIDHIB   TENANCY.  177 

to  be  twice  as  much  as  the  hereditary  peasantry  could 
till,  the  resident  husbandmen  were  of  too  much  im- 
portance to  be  bullied  or  squeezed  into  discontent. 
But  once  a  large  body  of  immigrant  cultivators  had 
grown  up,  this  primitive  check  on  the  landlords' 
exactions  was  removed.  The  migratory  tenants, 
therefore,  not  only  lost  their  position  in  their  old  vil- 
lages, but  they  were  harassed  in  their  new  settlements. 
Worse  than  all,  they  were  to  a  certain  extent  con- 
founded with  the  landless  low  castes  who,  destitute 
of  the  local  connections  so  keenly  prized  in  rural 
society  as  the  evidences  of  respectability,  wandered 
about  as  hired  labourers  and  temporary  cultivators  of 
surplus  village  lands.'  (Hunter,  '  Orissa,'  i.  57,  58.) 

You  will  perhaps  have  divined  the  ground  of  the 
special  attention  which  has  been  claimed  for  these 
Fuidhir  tenants,  and  will  be  prepared  to  hear  that 
their  peculiar  status  has  been  supposed  to  have  a 
bearing  on  those  agrarian  difficulties  which  have 
recurred  with  almost  mysterious  frequency  in  the 
history  of  Ireland.  It  is  certainly  a  striking  circum- 
stance that  in  the  far  distance  of  Irish  tradition  we 
come  upon  conflicts  between  rent-paying  and  rent- 
receiving  tribes- — that,  at  the  first  moment  when  our 
information  respecting  Ireland  becomes  full  and 
trustworthy,  our  informants  dwell  with  indignant 
emphasis  on  the  '  racking '  of  tenants  by  the  Irish 
Chiefs — and  that  the  relation  of  Irish  landlord  and 

ff 


178  IRISH   AGRARIAN   HISTORY.  iwrr.  Tt, 

Irish  tenant,  after  being  recognised  ever  since  the 
beginning  of  the  century  as  a  social  difficulty  of  the 
first  magnitude,  finally  became  a  political  difficulty, 
•which  was  settled  only  the  other  day.  I  do  not  say 
that  there  is  not  a  thread  of  connection  between 
these  stages  of  Irish  agrarian  history,  but  there  are 
two  opposite  errors  into  which  we  may  be  betrayed 
if  we  assume  the  thread  to  have  been  uniform 
throughout.  In  the  first  place,  we  may  be  tempted 
to  antedate  the  influence  of  those  economical  laws 
which  latterly  had  such  powerful  operation  in  Ireland 
until  their  energy  was  well-nigh  spent  through  the 
consequences  of  the  great  famine  of  1845-6.  An 
overflowing  population  and  a  limited  area  of  culti- 
vable land  had  much  to  do,  and  probably  more  than 
anything  else  to  do,  with  the  condition  of  Ireland 
during  that  period;  but  neither  the  one  nor  the  other 
was  a  characteristic  of  the  country  at  the  end  of  the 
sixteenth  century.  Next,  we  may  perhaps  be  inclined, 
as  some  writers  of  great  merit  seem  to  me  to  be,  to 
post-date  the  social  changes  which  caused  so  large  a 
portion  of  the  soil  of  Ireland  to  be  placed  under  the 
uncontrolled  Law  of  the  Market,  or,  to  adopt  the 
ordinary  phraseology,  which  multiplied  'tenants  at 
will '  to  an  unusual  extent.  Doubtless,  if  we  had  to 
found  an  opinion  as  to  these  causes  exclusively  on 
ancient  Irish  law,  and  on  modern  English  real 
property  law,  we  should  perhaps  come  to  the  conclu- 


.  vi.      TESTIMONY   OP  SPENSER  AND   DAVIS.  179 

sion  that  an  archaic  system,  barely  recognising  abso- 
lute ownership,  had  been  violently  and  unnaturally 
replaced  by  a  system  of  far  more  modern  stamp 
based  upon  absolute  property  in  land.  But,  by  the 
end  of  the  sixteenth  century,  our  evidence  is  that  the 
Chiefs  had  already  so  much  power  over  their  tenants 
that  any  addition  to  it  is  scarcely  conceivable.  '  The 
Lords  of  land,'  says  Edmund  Spenser,  writing  not 
later  than  1596,  *  do  not  there  use  to  set  out  their  land 
to  farme,  for  tearme  of  years,  to  their  tenants,  but 
only  from  yeare  to  yeare,  or  during  pleasure,  neither 
indeed  will  the  Irish  tenant  or  husbandman  otherwise 
take  his  land  than  so  long  as  he  list  himselfe.  The 
reason  thereof  in  the  tenant  is,  for  that  the  landlords 
there  use  most  shamefully  to  racke  their  tenants, 
laying  upon  them  coin  and  livery  at  pleasure,  and 
exacting  of  them  besides  his  covenants  what  he 
pleaseth.  So  that  the  poore  husbandman  either  dare 
not  binde  himselfe  to  him  for  longer  tearme,  or 
thinketh,  by  his  continuall  liberty  of  change,  to  keepe 
his  landlord  the  rather  in  awe  from  wronging  of  him. 
And  the  reason  why  the  landlord  will  no  longer 
covenant  with  him  is,  for  that  he  dayly  looketh  after 
change  and  alteration,  and  hovereth  in  expectation  of 
new  worlds.'  Sir  John  Davis,  writing  rather  before 
1713,  used  still  stronger  language:  'The  Lord  is  an 
absolute  Tyrant  and  the  Tennant  a  very  slave  and 
villain,  and  in  one  respect  more  miserable  than  Bond 

vl 


180  EXPLANATIONS   OF   ENGLISH   TESTIMONY.      LECT.  n, 

Slaves.     For  commonly  the  Bond  Slave  is  fed  by  his 
Lord,  but  here  the  Lord  is  fed  by  his  Bond  Slave.' 

There  is  very  little  in  common  between  the 
miserable  position  of  the  Irish  tenant  here  described 
and  the  footing  of  even  the  baser  sort  of  Ceiles,  or 
villeins,  who  had  taken  stock  from  the  Chief.  If  the 
Brehon  law  is  to  be  trusted,  the  Daer  Ceile  was  to  be 
commiserated,  rather  because  he  had  derogated  from 
hia  rights  as  a  free  tribesman  of  the  same  blood  with 
the  Chief,  than  because  he  had  exposed  himself  to  un- 
bridled oppression.  Besides  paying  dues  more  of  the 
nature  of  modern  rent,  he  certainly  stood  under  that 
unfortunate  liability  of  supplying  periodical  refection 
for  his  Chief  and  his  followers.  But  not  only  was  the 
amount  of  his  dues  settled  by  the  law,  but  the  very 
size  of  the  joints  and  the  quality  of  the  ale  with  which 
he  regaled  his  Chief  were  minutely  and  expressly 
regulated.  And,  if  one  provision  of  the  law  is  clearer 
than  another,  it  is  that  the  normal  period  of  the 
relation  of  tenancy  or  vassalage  was  not  one  year,  but 
seven  years.  How,  then,  are  we  to  explain  this  dis- 
crepancy? Is  the  explanation  that  the  Brehon  theory 
never  in  reality  quite  corresponded  with  the  facts? 
It  may  be  so  to  some  extent,  but  the  careful  student 
of  the  Brehon  tracts  will  be  inclined  to  think  that 
the  general  bias  of  their  writers  was  rather  towards 
exaggeration  of  the  privileges  of  Chiefs  than  towards 
overstatement  of  the  immunities  of  tribesmen.  Is  it, 


.  vi.     EXPLANATIONS   OP  ENGLISH   TESTIMONY.  161 

on  the  other  hand,  likely  that,  as  some  patriotic 
Irishmen  have  asserted,  Spenser  and  Davis  were 
under  the  influence  of  English  prejudice,  and  grossly 
misrepresented  the  facts  of  Irish  life  in  their  day? 
Plenty  of  prejudice  of  a  certain  kind  is  disclosed  by 
their  writings,  and  I  doubt  not  that  they  were  capable 
of  occasionally  misunderstanding  what  they  saw. 
Nothing,  however,  which  they  have  written  suggests 
that  they  were  likely  wilfully  to  misdescribe  facts 
open  to  their  observation.  I  can  quite  conceive  that 
isome  things  in  the  relations  of  the  Chiefs  and  tenants 
escaped  them,  possibly  a  good  deal  of  freely-given 
loyalty  on  one  side,  and  of  kindliness  and  good- 
humoured  joviality  on  the  other.  But  that  the  Irish 
Chief  had  in  their  day  the  power  or  right  which  they 
attribute  to  him  cannot  seriously  be  questioned. 

The  power  of  the  Irish  Chiefs  and  their  severity  to 
their  tenants  in  the  sixteenth  century  being  admitted, 
they  have  been  accounted  for,  as  I  before  stated,  by 
supposing  that  the  Norman  nobles  who  became  grad- 
ually clothed  with  Irish  chieftainships — the  Fitz- 
geralds,  the  Burkes,  and  the  Barrys — abused  an  au- 
thority which  in  native  hands  would  have  been  subject 
to  natural  limitations,  and  thus  set  an  evil  example  to 
all  the  Chiefs  of  Ireland.  The  explanation  has  not 
the  antecedent  improbability  which  it  might  seem 
to  have  at  first  sight,  but  I  am  not  aware  that  there 
is  positive  evidence  to  sustain  it.  I  owe  a  far  more 


182  STATUS  OF   THE   FUIDHIR.  LECT.  ru 

plausible  theory  of  the  cause  of  change  to  JDr.  Sulli- 
van, who,  in  his  Introduction  (p.  cxxvi),  has  sug- 
gested that  it  was  determined  by  the  steady  multipli- 
cation of  Fuidhir  tenants.  It  must  be  recollected  that 
this  class  of  persons  would  not  be  protected  by  the 
primitive  or  natural  institutions  springing  out  of 
community  of  blood.  The  Fuidhir  was  not  a  tribes- 
man but  an  alien.  In  all  societies  cemented  together 
by  kinship  the  position  of  the  person  who  has  lost 
or  broken  the  bond  of  union  is  always  extraordinarily 
miserable.  He  has  not  only  lost  his  natural  place  in 
them,  but  they  have  no  room  for  him  anywhere 
else.  The  wretchedness  of  the  outcast  in  India, 
understood  as  the  man  who  has  lost  or  been  expelled 
from  caste,  does  not  arise  from  his  having  been  de- 
graded from  a  higher  to  a  lower  social  standing,  but 
from  his  having  no  standing  whatever,  there  being  no 
other  order  of  society  open  to  receive  him  when  he 
has  descended  from  his  own.  It  was  true  that  the 
Fuidhir,  though  he  had  lost  the  manifold  protection 
of  his  family  and  tribe,  was  not  actually  exposed  to 
violent  wrong.  From  that  he  was  protected  by  the 
new  Chief  to  whom  he  had  attached  himself,  but  be- 
tween him  and  this  Chief  there  was  nothing.  The 
principle  would  always  be  that  he  was  at  the  mercy 
of  the  Chief.  At  the  utmost,  some  usages  favourable 
to  him  might  establish  themselves  through  lapse  of 
time,  but  they  would  have  none  of  the  obligatory 


uxrr.  vx.  DISORDER   OP   ANCIENT   IRELAND.  183 

force  belonging  to  the  rules  which  defined  the  righta 
of  the  Chief  in  respect  of  his  Saer-stock  and  Daer- 
stock  tenants.  We  can  see  that  several  of  the  duties 
corresponding  to  these  rights  were  of  a  kind  to  invite 
abuse  ;  much  more  certainly  would  obligations  analo- 
gous to  them,  but  wholly  imposed  by  the  pleasure  of 
the  Chief,  become  cruelly  oppressive.  The  '  refec- 
tions '  of  the  Brehon  law  would,  by  a  miserable  de- 
gradation, become  (to  borrow  the  language  of  Spen- 
ser and  Davis)  coin  and  livery,  cuttings,  cosherings, 
and  spendings,  in  the  case  of  the  Fuidhirs.  Meanwhile 
there  were  causes  at  work,  powerfully  and  for  long 
periods  of  time,  to  increase  the  numbers  of  this  class. 
Even  those  Irishmen  who  believe  that  in  the  distant 
past  there  was  once  a  tolerably  well-ordered  Ireland 
admit  that  for  many  centuries  their  country  was 
racked  with  perpetual  disturbance.  Danish  piracies, 
intestine  feuds,  Anglo-Norman  attempts  at  conquest 
never  consistently  carried  out  or  thoroughly  com- 
pleted, the  very  existence  of  the  Pale,  and  above  all 
the  policy  directed  from  it  of  playing  off  against  one 
another  the  Chiefs  beyond  its  borders,  are  allowed  by 
all  to  have  distracted  the  island  with  civil  war,  how- 
ever the  responsibility  for  it  is  to  be  apportioned. 
But  the  process  is  one  which  must  have  broken  up 
tribes  far  and  wide,  and  broken  tribes  imply  a  multi- 
tude of  broken  men.  Even  in  brief  intervals  of  peace 
the  violent  habits  produced  by  constant  disorder  would 


184  INDIAN   HEEEDITAEY   TENANTS.  LECI.  M. 

bring  about  the  frequent  expulsion  by  families  of 
members  for  whom  they  refused  to  remain  responsible, 
and  in  the  commoner  eventuality  of  war  whole  frag- 
ments would  be  from  time  to  time  torn  away  from 
tribes  and  their  atoms  scattered  in  every  part  of  Ire- 
land. It  is,  therefore,  a  conjecture  possessing  a  very 
high  degree  of  plausibility,  that  the  tenantry  of  the 
Irish  Chiefs  whose  sufferings  provoked  the  indignation 
of  Spenser  and  Davis  consisted  largely  of  Fuidhirs. 

The  explanation  may,  however,  be  carried  beyond 
this  point.  You  will  bear  in  mind  the  passage  quoted 
by  me  from  Hunter's  'Orissa,'  which  shows  how  a 
tenantry  enjoying  hereditary  rights  is  injured,  even 
under  a  Government  which  sternly  compels  peace  and 
order,  by  a  large  immigration  of  cultivators  depen- 
dent on  the  landlord  or  Zemindar.  They  narrow  the 
available  waste  land  by  their  appropriations  ;  and, 
though  they  do  not  compete  directly  for  the  anciently 
cultivated  land  with  the  tenants  enjoying  hereditary 
rights,  they  greatly  raise  in  the  long  run  the  standard 
of  rent,  at  the  same  time  that  they  arm  the  landlord 
with  those  powers  of  exacting  it  which  in  ancient 
Ireland  consisted  in  the  strong  hand  of  the  Chief  him- 
self, and  which  consist,  in  modern  India,  in  the  money 
which  puts  in  motion  the  arm  of  the  law.  I  have 
no  doubt  whatever  that  a  great  multiplication  of 
Fuidhir  tenants  would  always  seriously  alter  for  the 
worse  the  position  of  the  tenants  by  Saer-stock  and 
Dear-stock  tenure. 


UCi.  Til.      ABOLITION   OF   NATIVE    llilSH   TENURES.  IS6 


LECTURE  VII. 

ANCIENT   DIVISIONS   OF   THE   FAMILY 

4  BEFORE  the  establishment  of  the  (English)  common 
law,  all  the  possessions  within  the  Irish  territories 
ran  either  in  course  of  Tanistry  or  in  course  of  Gavel- 
kind.  Every  Signory  or  Chiefry  with  the  portion  of 
land  which  passed  with  it  went  without  partition  to 
the  Tanist,  who  always  came  in  by  election  or  with 
the  strong  hand,  and  not  by  descent ;  but  all  inferior 
tenanties  were  partible  between  males  in  Gavel- 
kind.'  ( Sir  J.  Davis'  Reports,  '  Le  Cas  de  Gavelkind/ 
Hil.  3,  Jac.  1.,  before  all  the  Judges.) 

This  passage  occurs  in  one  of  the  famous  cases  in 
which  the  Anglo-Irish  Judges  affirmed  the  illegality 
of  the  native  Irish  tenures  of  land.  They  declared 
the  English  common  law  to  be  in  force  in  Ireland, 
and  thenceforward  the  eldest  son  succeeded,  as  heir- 
at-law,  both  to  lands  which  were  attached  to  a  Sig- 
nory and  to  estates  which  had  been  divided  according 
to  the  peculiar  Irish  custom  here  called  Gavelkind. 
The  Judges  thoroughly  knew  that  they  were  making 


186  THE  IRISH  GAVELKIND.  IECT.  rn. 

a  revolution,  and  they  probably  thought  that  they 
were  substituting  a  civilised  institution  for  a  set  of 
mischievous  usages  proper  only  for  barbarians.  Yet 
there  is  strong  reason  for  thinking  that  Tariistry 
is  the  form  of  succession  from  which  Primogeni- 
ture descended,  and  that  the  Irish  Gavelkind,  which 
they  sharply  distinguished  from  the  Gavelkind  of 
Kent,  was  nothing  more  than  at\  archaic  form  of  this 
same  institution,  of  which  Courts  in  England  have 
always  taken  judicial  notice,  and  which  prevailed  far 
more  widely  on  the  European  Continent  than  succes- 
sion by  Primogeniture. 

It  will  be  convenient  that  we  should  first  consider 
the  so-called  Gavelkind  of  Ireland,  which  is  thus  de- 
scribed by  Sir  John  Davis  :  'By  the  Irish  custom 
of  Gavelkind,  the  inferior  tenanties  were  partible 
among  all  the  males  of  the  Sept,  both  Bastards  and 
Legitimate  ;  and,  after  partition  made,  if  any  one  of 
the  Sept  had  died,  his  portion  was  not  divided  among 
his  sonnes,  but  the  Chief  of  the  Sept  made  a  new  par- 
tition of  all  the  lands  belonging  to  that  Sept,  and 
gave  every  one  his  part  according  to  his  antiquity.' 

This  statement  occasions  some  perplexity,  which 
does  not,  however,  arise  from  its  being  antecedently 
incredible.  It  is  made,  you  will  observe,  not  of  the 
Clan  or  Tribe  in  its  largest  extension,  but  of  the  Sept. 
The  first  was  a  large  and  miscellaneous  body,  com- 
posed in  great  part  of  men  whose  relationship  of 


LECT.  vn.        EXPLANATION   OF   IRISH   GAVELKIND.  187 

blood  with  the  Chief  and  the  mass  of  free  tribes- 
men, was  a  mere  fiction.  The  last  was  a  much 
smaller  body,  whose  proximity  to  a  common  ances- 
tor was  close  enough  to  admit  of  their  kinship  either 
being  a  fact  or  being  believed  to  be  a  fact.  It  ap- 
parently corresponded  to  the  small  Highland  com- 
munities observed  in  Scotland,  by  an  English  officer 
of  Engineers  about  1730.  'They  (the  Highlanders) 
are  divided  into  tribes  or  clans  under  chiefs  or  chief- 
tains, and  each  clan  is  again  divided  into  branches 
from  the  main  stock,  who  have  chieftains  over  them. 
These  are  subdivided  into  smaller  branches,  of  fifty 
or  sixty  men,  who  deduce  their  original  from  their  par- 
ticular chieftains.  (Quoted  by  Skene, '  Highlanders,' 
i.  p.  156.)  Such  a  body,  as  1  have  already  stated, 
seems  to  be  the  Joint  Family  well  known  to  the 
Hindoos,  but  continued  as  a  corporate  unit  (which  is 
very  rarely  the  casein  India),  through  several  succes- 
sive generations.  There  is  no  difference  in  principle, 
and  little  in  practical  effect,  between  the  mode  of 
succession  described  by  Davis  and  the  way  hi  which 
a  Hindoo  Joint  Family  is  affected  by  the  death  of 
one  of  its  members.  All  the  property  being  held  in 
common,  and  all  earnings  being  brought  into  the 
*  common  chest  or  purse,'  the  lapse  of  any  one  life 
would  have  the  effect,  potentially  if  not  actually,  of 
distributing  the  dead  man's  share  among  all  the  kin* 
dred  united  in  the  family  group.  And  if,  on  a  dis- 


188      NATURAL  COMMUNISM  OF  PRIMITIVE  GROUPS.   IECI.  vn. 

solution  of  the  Joint  Family,  the  distribution  of  its 
effects  were  not  per  capita  but  per  stirpes,  this  would 
correspond  to  what  Davis  probably  means  when  he 
describes  the  Chief  as  giving  to  each  man  *  according 
to  his  antiquity.' 

The  special  novelty  of  the  information  supplied  to 
us  by  the  ancient  Irish  law  consists  in  its  revealing 
to  us  a  society  of  Aryan  race,  settled,  indeed,  on  the 
land,  and  much  influenced  by  its  settlement,  but 
preserving  an  exceptional  number  of  the  ideas  and 
rules  belonging  to  the  time  when  kinship  and  not  the 
land  is  the  basis  of  social  union.  There  is,  therefore, 
nothing  extraordinary  in  our  finding,  among  the 
ancient  usages  of  the  Irish,  an  institution  savouring 
so  much  of  the  '  natural  communism  '  of  the  primitive 
forms  of  property  as  this  Irish  Gavelkind.  This 
1  natural  communism,'  I  have  repeatedly  urged,  does 
not  arise  from  any  theory  or  a  priori  assumption  as 
to  the  best  or  justest  mode  of  dividing  the  land  of  a 
community,  but  from  the  simple  impossibility,  accord- 
ing to  primitive  notions,  of  making  a  distinction  be- 
tween a  number  of  kinsmen  solely  connected  by  their 
real  or  assumed  descent  from  a  common  ancestor. 
The  natural  solvent  of  this  communism  is  the  land 
itself  upon  which  the  kindred  are  settled.  As  the 
common  ancestry  fades  away  into  indistinctness,  and 
the  community  gets  to  consider  itself  less  an  assem- 
blage of  blood-relations  than  a  body  of  co- villagers, 


.  m.   EXTANT   EXAMPLES   OP   IRISH   GAVELKIXD.          189 

each  household  clings  with  increasing  tenacity  to  the 
allotment  which  it  has  once  obtained,  and  re-divisions 
of  the  land  among  the  whole  community,  whether  at 
fixed  periods  or  at  a  death,  become  rarer  and  rarer, 
and  at  last  cease  altogether,  or  survive  only  as  a 
tradition.  In  this  way  the  widely  diffused  but 
modified  form  of  tribal  succession,  which  in  England 
is  called  Gavelkind,  is  at  last  established ;  the  descen- 
dants of  the  latest  holder  take  his  property,  to  the  ex- 
clusion of  everybody  else,  and  the  rights  of  the  por- 
tion of  the  community  outside  the  family  dwindle  to 
a  veto  on  sales,  or  to  a  right  of  controlling  the  modes 
of  cultivation.  Nevertheless,  surveying  the  Aryan 
world  as  a  whole,  and  looking  to  societies  in  which 
some  fragments  of  the  ancient  social  organisation 
still  survive,  we  can  discover  forms  of  succession  or 
property  which  come  surprisingly  near  to  the  Irish 
Gavelkind  described  by  Davis.  The  best  example  of 
this  occurs  hi  a  practice  which  existed  down  to  our 
own  day  over  a  large  part  of  Russia.  The  principle 
was  that  each  household  of  the  village  was  entitled 
to  a  share  of  the  village-lands  proportioned  to  the 
number  of  adult  males  it  contained.  Every  death, 
therefore,  of  a  grown-up  man  diminished  pro  tanto  the 
share  of  the  household,  and  every  member  of  it  grown 
to  manhood  increased  its  lot  in  the  cultivated  area. 
There  was  a  fixed  unit  of  acreage  corresponding  to 
the  extent  of  soil  cultivable  by  one  man's  labour, 


190  DIFFICULTIES  SUGGESTED  BY  IRISH  GAVELKIND. 

and  at  the  periodical  division  each  household  obtained 
just  as  much  land  as  answered  to  its  number  of  adult 
labouring  men.  The  principal  distinction  between 
this  system  and  that  which  seemed  so  monstrous  and 
unnatural  to  Sir  John  Davis  is,  that  under  the  first  the 
re-division  took  place,  not  as  each  death  occurred,  but 
at  stated  intervals.  I  must  not,  indeed,  Ibe  understood 
to  say  that  I  think  the  distinction  unimportant.  It 
is  very  possible  that  re -distributions  at  deaths  of  a 
common  fund  may  mark  a  more  advanced  stage  in 
the  history  of  Property  than  periodical  redistribution 
and  that  the  recognition  of  interests  for  an  entire  life 
may  have  preceded  and  paved  the  way  for  the  final 
allotment  of  permanent  shares  to  separate  households. 
Until,  however,  this  last  point  has  been  reached,  all 
the  modes  of  re -division  known  to  us  are  plainly 
referable  to  the  same  principle. 

The  difficulty  suggested  by  the  recital  in  the 
*  Case  of  Gavelkind'  is  thus  not  a  difficulty  in  believ- 
ing it  if  it  stood  by  itself,  or  if  it  were  made  with  less 
generality.  But  it  is  distinctly  stated  that  all  the 
lands  in  Ireland  which  did  not  descend  by  the  rule 
of  Tanistry  descended  by  the  rule  of  Gavelkind. 
The  indications  of  the  state  of  law  or  custom  furnished 
by  the  Brehon  tracts  certainly  seem  to  me  inconsis- 
tent with  this  assertion.  They  show  us  proprietary 
rights  defined  with  a  sharpness  and  guarded  with  a 
jealousy  which  is  hard  to  reconcile  with  the  degree 


.  vii.        DISCREPANCIES   IN   IRISH  EVIDENCE.  101 


of  *  natural  communism  '  implied  in  the  language  of 
Davis's  Report.     The  Corus  Bescna,  of  which  I  said 
something  before,  and  which  deals  with  rights  over 
tribal  lands,  implies  that  under  certain  circumstances 
they  might  be  permanently  alienated,  at  all  events  to 
the  Church;  and  we  shall  presently  have  to  discuss 
some  very  singular  rules  of  succession,  which,  how- 
ever they  may  affect  the  Family,  certainly  seem  to  ex- 
clude the  Sept.     Dr.  Sullivan,  who  appears  to  have 
consulted  many  more  original  authorities  than  have 
been  translated  or  given  to  the  world,  expresses  him- 
self as  if  he  thought  that  the  general  law  of  succes- 
sion in  Ireland  was  nearly  analogous  to  the  Gavelkind 
of  Kent.     '  According  to  the  Irish  custom,  property 
descended  at  first  only  to  the  male  heirs  of  the  body, 
each  son  receiving  an  equal  share  ......  Ultimately, 

however,  daughters  appear  to  have  become  entitled  to 
inherit  all,  if  there  were  no  sons*  (In  trod.,  p.  clxx). 
I  do  not  expect  that  the  apparent  contradiction 
between  the  Brehon  tracts  and  the  language  of  Davis 
and  his  contemporaries  respecting  the  Irish  law  of 
succession  to  land  will  be  fully  accounted  for  till  the 
whole  of  the  ancient  legal  literature  is  before  the 
world;  but  meanwhile  it  is  a  plausible  explanation 
of  the  discrepancy  that  the  Irish  and  the  English 
writers  attended  to  different  sets  of  phenomena.  I 
cannot  doubt  that  the  so-called  Irish  Gavelkind  was 
found  over  a  great  part  of  the  country.  The  state- 


192  PROBABLE   VARIETY   OF   IRISH   TENURES.      LECT.  vn. 

ments  of  English  authorities  on  the  point  are  ex- 
tremely precise.  They  affirm  that  '  no  civil  habita- 
tions were  erected,  and  no  enclosure  or  improvement 
was  made  of  land  where  Gavelkind  was  in  use/  and 
they  say  that  this  was  especially  the  case  in  Ulster, 
'  which  was  all  one  wilderness.'  Nevertheless  it  is  ex- 
tremely probable  that  another  set  of  facts  justified  the 
indications  given  by  the  Brehon  tracts,  and  that  there 
were  other  modes  of  succession  known  besides  succes- 
sion by  Tanistry  on  the  one  hand,  and  besides  on  the 
other  hand  the  peculiarly  archaic  system  under  which 
each  lapsed  share  was  at  once  divided  between  all  the 
members  of  the  Sept.  Such  an  institution  as  the  last, 
though  exceptional  circumstances  may  keep  it  alive, 
contains  within  itself  a  principle  of  decay.  Each  house- 
hold included  in  the  Joint  Family  gains  a  firmer  hold 
on  its  share  of  the  lands  as  the  distance  increases 
from  the  common  ancestor  ;  and  finally  appropriates 
it,  transmitting  it  exclusively  to  offshoots  from  its 
own  branch.  Nothing  is  more  likely  than  that  there 
were  frequent  examples  of  Irish  septs  with  their 
land-customs  in  this  condition;  and  it  is  still  more 
probable  that  usages  of  a  similarly  modern  stamp 
prevailed  in  estates  permanently  severed  or  *  booked 
off '  from  tribal  possession  or  established  at  a  distance 
from  the  main  seat  of  the  tribe.  It  is  true  that,  in 
society  based  on  kinship,  each  family  separated  from 
the  rest  tends  itself  to  expand  into  a  joint  family  or 


.  TH.      PRIVATE  ESTATES  OP  CHIEFS.          193 


sept;  but  in  these  severed  estates  custom  would  be 
apt  to  be  enfeebled  and  to  abate  something  of  its 
tyranny.  Thus,  putting  the  rule  of  Tanistry  aside,  I 
can  quite  conceive  that  the  Irish  Gavelkind,  the 
modern  Gavelkind  known  to  Kent,  and  many  forms 
of  succession  intermediate  between  the  two,  co-existed 
in  Ireland.  Both  the  English  and  the  Irish  authorities 
on  law  had  prejudices  of  their  own  which  might  lead 
them  to  confine  their  attention  to  particular  usages. 
The  Brehon  writers  seem  to  me  distinctly  biassed  in 
favour  of  the  descent  of  property  in  individual 
families,  which  commended  itself  to  them  as  lawyers, 
as  friends  of  the  Church,  and  (it  may  be)  as  well- 
wishers  to  their  country.  On  the  other,  the  strange 
ancient  form  of  ownership  which  he  called  Gavelkind 
would  fascinate  the  observation  of  an  Englishman  resi- 
dent in  Ireland.  He  would  assuredly  have  none  of  the 
curiosity  about  it  which  we  feel  nowadays,  but  sur- 
prise and  dislike  would  fix  his  attention  upon  it,  and 
perhaps  prevent  his  recognising  the  comparatively 
wide  diffusion  of  institutions  of  the  opposite  type. 

This  interpretation  of  the  seeming  contradiction 
between  our  authorities  is  consistent  with  the  very 
little  we  know  respecting  actual  divisions  of  land  in 
ancient  Ireland.  It  constantly  happened  both  in 
Ireland  and  the  Scottish  Highlands  that  a  Chief, 
besides  the  domain  which  appertained  to  his  office, 
had  a  great  estate  held  under  what  the  English 

o 


194  ACTUAL   DIVISIONS   OP  LAND   BY  CHIEFS.     LECT.  TIL 

lawyers  deemed  the  inferior  tenure.  There  are  two 
cases  on  record  in  which  Irish  Chiefs  of  considerable 
dignity  distributed  such  estates  among  their  kindred. 
In  the  fourteenth  century  Connor  More  O'Brien,  a 
chief  who  had  children  of  his  own,  is  stated  to  have 
divided  his  land  on  principles  which  must  have  more 
or  less  corresponded  to  those  condemned  by  the 
Anglo-Irish  Judges.  The  bulk  of  the  estate  he  as- 
signed to  the  various  families  of  the  Sept  formed  by 
his  own  relatives.  To  himself  he  reserved  only  one- 
sixth  of  one-half  of  one-third,  and  even  this  sixth  he 
divided  between  his  three  sons,  reserving  only  a  rent 
to  himself.  But  at  the  end  of  the  fifteenth  century 
Donogh  O'Brien,  son  of  Brien  Duff,  son  of  Connor, 
King  of  Thomond,  divided  all  his  lands  between  his 
eleven  sons,  reserving  to  himself  only  the  mansion  and 
the  demesne  in  its  vicinity.  The  difference  between 
the  two  cases,  which  (it  is  instructive  to  observe)  are 
separated  by  at  least  a  century,  appears  to  me  suffi- 
ciently plain.  In  the  first  the  land  had  remained  in  a 
state  of  indivision  during  several  generations  ;  in  the 
second  it  had  been  periodically  divided.  Connor 
More  O'Brien  was  distributing  the  inheritance  of  a 
joint  family;  Donogh  O'Brien  that  of  a  family. 
(Vallancey,  l  Collectanea  de  Rebus  Hibernicis,'  i. 
264,  265.) 

It  is  worthy  of  observation  that  in    the    more 
ancient  example  Connor  More  O'Brien  appears  to 


BCT.  Til.        SUCCESSION   OF   MOPES   (.&   DIVISION.  195 

"have  paid  regard  to  the  various  stirpes  or  stocks  into 
which  the  descendants  of  the  original  founder  of  his 
family  had  branched  out.  The  principle  he  followed 
I  suppose  to  be  the  same  as  that  pointed  out  by  Davis 
when  he  speaks  of  the  chief  dividing  a  lapsed  share 
between  the  members  of  a  sept  'according  to  their 
antiquity.'  The  proceeding  deserves  to  be  noted,  as 
showing  an  advance  on  the  oldest  known  tribal 
customs.  In  the  most  archaic  forms  of  the  Joint 
Family,  and  of  the  institution  which  grew  out  of  it, 
the  Village- Community,  these  distributions  are  per 
capita;  no  one  person  who  is  entitled  takes  more  than 
another,  whether  the  whole  estate  or  a  portion  is 
divided,  and  no  respect  is  paid  to  the  particular  way 
in  which  a  given  individual  has  descended  from  the 
common  ancestor.  Under  a  more  advanced  system 
the  distribution  is  per  stirpes ;  careful  attention  is  paid 
to  the  lines  into  which  the  descendants  of  the  ancestor 
of  the  joint-family  have  separated,  and  separate  rights 
are  reserved  to  them.  Finally,  the  stocks  themselves 
escape  from  the  sort  of  shell  constituted  by  the  Joint 
Family;  each  man's  share  of  the  property,  now 
periodically  divided,  is  distributed  among  his  direct 
descendants  at  his  death.  At  this  point,  property  in 
its  modern  form  has  been  established;  but  the  Joint 
Family  has  not  wholly  ceased  to  influence  successions. 
When  direct  descendants  fail  it  is  even  now  the  rules 
of  the  Joint  Family  which  determine  the  taking  of 

o  2 


196  DISTRIBUTION  DURING  LIFE.  LECT.  vn. 

the  inheritance.  Collateral  successions,  when  they 
are  distant,  follow  the  more  primitive  form  of  the 
old  institution,  and  are  per  capita,',  when  they  are 
those  of  the  nearer  kindred  they  are  adjusted  to  its 
more  modern  shape,  and  are  per  stirpes. 

The  remark  has  further  to  be  made  that  both 
Connor  O'Brien  and  Donogh  O'Brien  divided  their 
own  land  among  their  sons  or  kindred  during  their 
own  lifetime.  Like  Laertes  in  the  Odyssee,  the 
old  Chief,  in  the  decay  of  his  vigour,  parts  with  his 
power  and  retains  but  a  fraction  of  the  property  he 
had  administered ;  and  the  poorer  freeman  becomes 
one  of  those  '  senior '  pensioners  of  the  tribe  so  often 
referred  to  in  the  tracts.  Precisely  the  same  practice 
is  recognised,  and  even  (as  some  think)  enjoined,  by 
the  more  archaic  bodies  of  Hindoo  jurisprudence. 
The  principle  is  that  the  right  of  each  member  of  a 
family  accrues  at  his  birth ;  and,  as  the  family  has  in 
theory  a  perpetual  existence,  there  is  no  particular 
reason  why,  if  the  property  is  divided  at  all,  it  should 
be  exclusively  divided  at  a  death.  The  power  of 
distributing  inheritances  vested  in  the  Celtic  chiefs 
has  been  made  the  basis  of  some  very  doubtful 
theories,  but  I  have  no  doubt  it  is  essentially  the 
same  institution  as  the  humble  privilege  which  is 
reserved  to  the  Hindoo  father  by  the  Mitakshara. 
It  is  part  of  the  prerogative  belonging  to  the  repre- 
sentative of  the  purest  blood  in  the  joint  family;  but 


LECT.  m.  THE  BIBTHBIGHT.  197 

in  proportion  as  the  Joint  Family,  Sept,  or  Clan 
becomes  more  artificial,  the  power  of  distribution 
tends  more  and  more  to  look  like  mere  administrative 
authority. 

Under  some  systems  of  Hindoo  law,  the  father, 
when  making  a  distribution  of  property  during  his 
lifetime,  is  entitled  to  retain  a  double  share,  and  by 
some  Indian  customs  the  eldest  son,  when  dividing 
the  patrimony  with  his  brothers,  takes  twice  as  much 
as  the  others.  There  are  a  good  many  traces  of  the 
usage  in  this  last  form  in  a  variety  of  communities. 
It  is,  for  instance,  the  '  birthright '  of  the  Hebrew 
patriarchal  history.  I  mention  it  particularly  because 
it  seems  to  me  to  be  sometimes  improperly  confounded 
with  the  right  conferred  by  what  we  call  the  rule  of 
Primogeniture.  But  the  double  share  is  rather  given 
as  the  reward  or  (perhaps  we  should  say)  the  security 
for  impartial  distribution,  and  we  find  it  often 
coupled  with  the  right  to  take  exclusively  such 
things  as  are  deemed  incapable  of  partition,  the 
family  house,  for  instance,  and  certain  utensils.  The 
proof  that  it  is  not  essentially  a  privilege  of  the  eldest 
son,  we  find  in  the  circumstances  that  it  is  sometimes 
enjoyed  by  the  father  and  sometimes  by  the  youngest 
of  the  sons,  and  in  this  way  it  is  connected  with  our 
own  custom  of  Borough  English,  of  which  I  shall 
have  more  to  say  presently.  There  is  a  difference  of 
historical  origin  between  this  kind  of  p-'ivileged  sue- 


198  PRIMOGENITURE.  user.  TH 

cession  and  that  which  we  call  Primogeniture.  The 
first  is  descended  from  a  custom  of  the  Tribe;  the 
last,  to  which  I  now  pass,  seems  to  me  traceable  to 
the  special  position  of  the  Chief. 

The  Brehon  tracts  at  present  translated  do  not 
add  much  to  the  knowledge  which  we  possessed  of 
the  Irish  customs  corresponding  to  the  usage  of 
exclusive  succession  by  the  eldest  son;  and  Primo- 
geniture remains  what  I  called  it  thirteen  years  ago 
(*  Ancient  Law,'  p.  227),  '  one  of  the  most  difficult 
problems  of  historical  jurisprudence.'  The  first  of 
the  difficulties  which  surround  it  is  the  total  absence, 
before  a  particular  epoch  in  history,  of  recorded 
precedents  for  any  such  mode  of  succession  to  pro- 
perty. It  was  unknown  to  the  Hellenic  world.  It 
was  unknown  to  the  Roman  world.  It  was  unknown 
to  the  Jews,  and  apparently  to  the  whole  Semitic 
world.  In  the  records  of  all  these  societies  there  are 
vestiges  of  great  differences  between  the  succession 
of  males  and  the  succession  of  females ;  but  there 
was  nothing  like  the  exclusive  succession  of  a  single 
son  to  property,  although  the  descent  of  sovereignties 
to  the  eldest  son  of  the  last  reigning  king  was  a 
familiar  fact,  and  though  the  Greek  philosophers  had 
conjectured  that,  in  an  earlier  state  of  society  than 
theirs,  the  smaller  groups  of  men — families  and  vil- 
lages— had  been  governed  by  eldest  son  after  eldest 
son. 


iBcr.  vn.      ANCIENT   FORMS   OF   PRIMOGENITURE.  199 

Even  when  the  Teutonic  race  spread  over 
Western  Europe  they  did  not  bring  with  them 
Primogeniture  as  their  ordinary  rule  of  succession. 
The  allodial  property  of  the  Teutonic  freeman,  that 
share  which  he  had  theoretically  received  at  the 
original  settlement  of  the  brotherhood  to  which  he 
belonged  on  their  domain,  was  divided  at  his  death, 
when  it  was  divided  at  all,  equally  between  his  sons 
or  equally  between  his  sons  and  daughters.  It  is 
quite  certain,  however,  that  the  appearance  of  Primo- 
geniture in  the  West  and  its  rapid  diffusion  must  be 
connected  with  the  irruption  of  the  barbarians,  and 
\vith  the  tribal  ideas  re-introduced  by  them  into  the 
Roman  world.  At  this  point,  however,  we  encounter 
another  difficulty.  The  Primogeniture  which  first 
meets  us  is  not  uniformly  the  Primogeniture  with 
which  we  are  now  familiar.  The  right  of  the  eldest 
son  sometimes  gives  way  to  the  right  of  the  eldest 
male  relative  of  the  deceased,  and  occasionally  it 
seems  as  if  neither  the  succession  of  the  eldest  sou 
nor  that  of  the  eldest  relative  could  take  effect 
without  election  or  confirmation  by  the  members  of 
the  aggregate  group  to  which  both  belong. 

As  usual,  we  have  to  look  for  living  illustrations 
of  the  ancient  system  to  the  usages  of  the  Hindoos. 
The  Family,  according  to  the  Hindoo  theory,  is  des- 
potically governed  by  its  head;  but  if  he  dies  and  the 
Family  separates  at  his  death,  the  property  is  equally 


200  MANAGER  OF  JOINT  FAMILY.  LBCT.  vn, 

divided  between  the  sons.  If,  however,  the  Family 
does  not  separate,  but  allows  itself  to  expand  into  a 
Joint  Family,  we  have  the  exact  mixture  of  election 
and  doubtful  succession  which  we  find  in  the  early 
examples  of  European  primogeniture.  The  eldest 
son,  and  after  him  his  eldest  son,  is  ordinarily  the 
manager  of  the  affairs  of  the  Joint  Family,  but  his 
privileges  theoretically  depend  on  election  by  the 
brotherhood,  and  may  be  set  aside  by  it,  and,  when 
they  are  set  aside,  it  is  generally  in  favour  of  a 
brother  of  the  deceased  manager,  who,  on  the  score 
of  greater  age,  is  assumed  to  be  better  qualified  than 
his  nephew  for  administration  and  business.  In 
ancient  Irish  society  the  Joint  Family,  continued 
through  many  generations,  has  grown  first  into  the 
Sept  and  then  into  the  Clan,  contracting  a  greater 
degree  of  artificiality  in  proportion  to  its  enlarge- 
ment. The  importance,  meanwhile,  of  the  Chief  to 
the  Tribe  has  rather  increased  than  diminished,  since 
he  is  no  longer  merely  administrator  of  its  civil 
affairs  but  its  leader  in  war.  The  system  produced 
from  these  elements  appears  to  me  sufficiently  intel- 
ligible. The  veneration  of  the  Tribe  is  not  attracted 
by  individuals  of  the  Chieftain's  family,  but  by  the 
family  itself,  as  representing  the  purest  blood  of  the 
entire  brotherhood.  It  chooses  its  head  and  leader 
(save  on  the  very  rarest  occasions)  from  this  family, 
and  there  are  instances  of  the  choice  being  systeinati- 


UtcT.vn.  ELDEST  RELATIVE  PREFERRED  TO  ELDEST  SOE.   201 

cally  made  from  two  families  in  alternation.  But  the 
necessity  of  having  a  military  leader  in  the  vigour  of 
his  physical  and  mental  powers  is  much  too  imperious 
to  admit  of  his  choice  being  invariably  deferred  to 
the  death  of  the  ruling  Chief,  or  to  allow  of  the 
election  falling  universally  or  even  generally  on  his 
son.  'It  is  a  custom  among  all  the  Irish,'  says 
Spenser,  '  that  presently  after  the  death  of  any  of 
their  chief  lords  or  captains,  they  do  presently 
assemble  themselves  to  a  place  generally  appointed 
and  known  unto  them  to  choose  another  in  his 
btead,  where  they  do  nominate  and  elect  for  the  most 
part,  not  the  eldest  son.  nor  any  of  the  children  of 
the  lord  deceased,  but  the  next  to  him  of  blood  that  is 
eldest  and  worthiest,  as  commonly  the  next  brother 
if  he  have  any,  or  the  next  cousin,  and  so  forth,  as 
any  is  elder  in  that  kindred  or  sept;  and  then,  next 
to  him,  they  choose  the  next  of  the  blood  to  be 
Tauaist,  who  shall  succeed  him  in  the  said  Captaincy, 
if  he  live  thereunto.  .  .  .  For  when  then?  Captain 
dieth,  if  the  Signory  should  descend  to  his  child,  and 
he  perhaps  an  infant,  another  might  peradventure 
step  in  between  or  thrust  him  out  by  strong  hand, 
being  then  unable  to  defend  his  right  and  to  with- 
stand the  force  of  a  forreiner;  and  therefore  they  do 
appoint  the  eldest  of  the  kin  to  have  the  Signory,  for 
that  commonly  he  is  a  man  of  stronger  years  and 
better  experience  to  maintain  the  inheritance  and  to 


202  ORIGIN   OF  PRIMOGENITURE.  LECT.  vn. 

defend  the  country.  .  .  .  And  to  this  end  the  Tanaist 
is  always  ready  known,  if  it  should  happen  to  the 
Captain  suddenly  to  die,  or  to  be  slain  in  battle,  or  to 
be  out  of  the  country,  to  defend  and  keep  it  from  all 
such  dangers.'  (Spenser's  'View  of  the  State  of 
Ireland.') 

Primogeniture,  therefore,  considered  as  a  rule  of 
succession  to  property,  appears  to  me  to  be  a  pro- 
duct of  tribal  leadership  in  its  decay.  Some  such 
system  as  that  represented  by  the  Irish  Tanistry  be- 
longed probably  at  one  time  to  all  the  tribal  commu- 
nities which  overran  the  Roman  Empire,  but  no 
precise  assertion  can  be  made  as  to  the  stage  in  their 
history  at  which  it  began  to  be  modified,  especially 
since  Sohm's  investigations  (in  his  '  Frankis^he 
Reichs-und  Gerichtsverfassung')  have  shown  us  how 
considerably  the  social  organisation  of  some  of  these 
communities  had  been  affected  by  central  or  royal 
authority  in  the  interval  between  the  observations 
of  Tacitus  and  the  writing  of  the  Salic  Law.  But  I 
think  we  may  safely  conjecture  that  the  transition 
from  the  older  to  the  newer  Primogeniture  took  place, 
everywhere  under  circumstances  nearly  the  reverse 
of  those  which  kept  Tanistry  so  long  alive  in  Ireland. 
Wherever  some  degree  of  internal  peace  was  main- 
tained during  tolerably  long  periods  of  time,  wherever 
an  approach  was  made  to  the  formation  of  societies  of 
the  distinctive  modern  type,  wherever  military  and 


ZECT.  vn.     TRANSFORMATION   OF   PRIMOGENITURE.  208 

civil  institutions  began  to  group  themselves  round  the 
central  authority  of  a  king,  the  value  of  strategical 
capacity  in  the  humbler  chiefs  would  diminish,  and 
in  the  smaller  brotherhoods  the  respect  for  purity  of 
blood  would  have  unchecked  play.  The  most  natural 
object  of  this  respect  is  he  who  most  directly  derives 
his  blood  from  the  last  ruler,  and  thus  the  eldest  son, 
even  though  a  minor,  comes  to  be  preferred  in  the 
succession  to  his  uncle;  and,  in  default  of  sons,  the 
succession  may  even  devolve  on  a  woman.  There 
are  not  a  few  indications  that  the  transformation  of 
ideas  was  gradual.  The  disputes  among  great  High- 
land families  about  the  title  to  the  chieftaincy  of 
particular  clans  appear  to  date  from  a  period  when 
there  was  still  a  conflict  between  the  old  principle  of 
succession  and  the  new;  and  at  a  relatively  later 
period,  when  throughout  most  of  Western  Europe 
tribal  customs  have  been  replaced  by  feudal  rules, 
there  is  a  visible  uncertainty  about  such  of  these 
rules  as  affect  succession.  Glanville,  writing  of  Eng- 
lish military  tenures  in  the  later  part  of  the  reign  of 
Henry  the  Second,  observes :  4  When  anyone  dies, 
leaving  a  younger  son  and  a  grandson,  the  child  of  his 
eldest  son,  great  doubt  exists  as  to  which  of  the  two 
the  law  prefers  in  the  succession  to  the  other,  whether 
the  son  or  the  grandson.  Some  think  the  younger  son 
has  more  right  to  the  inheritance  than  the  grandson 
....  but  others  incline  to  think  that  the  grandson 


204  BRUCE   AND   BALIOL.  LECl   Tn. 

ought  to  be  preferred  to  his  uncle.'  (Glanville, 
vii.  7.)  The  very  same  question  of  principle  arose 
between  the  descendants  of  daughters  in  the  contro- 
versy between  Bruce  and  Baliol.  The  succession 
to  the  Crown  of  Scotland  was  ultimately  settled,  as  it 
would  have  been  in  earlier  times,  by  what  amounted  to 
national  election,  but  the  decision  of  Edward  the  First 
in  favour  of  Baliol  was  undoubtedly  in  accordance  with 
principles  which  were  gaining  ground  everywhere, 
and  I  quite  agree  with  Mr.  Burton  (ii.  249)  that  the 
celebrity  of  the  dispute  and  the  full  consideration 
given  to  it  did  much  to  settle  the  rule  which  prevailed 
in  the  end,  that  the  whole  of  the  descendants  of  an 
elder  child  must  be  exhausted  before  those  of  the 
younger  had  a  title.  When,  however,  the  eldest  son 
had  once  taken  the  place  of  his  uncle  as  the  heir  to 
the  humbler  chieftaincies,  he  doubtless  also  obtained 
that  '  portion  of  land  attached  to  the  Signory  or 
Chiefry  which  went  without  partition  to  the  Tanaist;' 
and,  as  each  community  gradually  settled  down  into 
comparative  peace  under  royal  or  central  authority, 
this  demesne,  as  it  was  afterwards  called,  must  have 
assumed  more  and  more  the  character  of  mere  pro- 
perty descending  according  to  the  rule  of  primogeni- 
ture. It  may  be  believed  that  in  this  way  a  principle 
of  inheritance  was  formed  which  first  of  all  extended 
from  the  demesne  to  all  the  estates  of  the  holder  of 
the  Signory,  however  acquired,  and  ultimately  deter- 


LECT.  Tn.  ABOLITION   OF   TANISTHY.  206 

mined  the  law  of  succession  for  the  privileged  classes 
throughout  feudalised  Europe.  One  vestige  of  this 
later  course  of  change  may  perhaps  be  traced  in  the 
noble  tenure  once  widely  extended  on  the  Continent, 
and  called  in  French  *  Parage,'  under  which  the  near 
kinsmen  of  the  eldest  son  still  took  an  interest  in  the 
family  property,  but  held  it  of  him  as  his  Peers. 
There  were,  however,  other  causes  than  those  just 
stated  which  led  to  the  great  development  of  Primo- 
geniture in  the  early  part  of  the  Middle  Ages,  but  for 
an  examination  of  them  I  may  be  allowed  to  refer  to 
the  work  of  mine  which  I  mentioned  above.  (l  An- 
cient Law,'  pp.  232  et  seq.) 

I  do  not  think  that  the  disaffirmation  of  the 
legality  of  Tanistry,  and  the  substitution  for  it  of  the 
rule  of  Primogeniture,  can  justly  be  reckoned  among 
the  mistakes  or  crimes  of  the  English  in  Ireland.  The 
practice  had  been  perpetuated  in  the  country  by  its 
disorders,  which  preserved  little  groups  of  kinsmen 
and  their  petty  chiefs  in  an  unnatural  vitality;  and 
probably  Sir  John  Davis  does  not  speak  too  harshly 
of  it  when  he  charges  it  with  {  making  all  possessions 
uncertain,  and  bringing  confusion,  barbarism,  and  in- 
civility.' The  decision  against  the  Irish  Gavelkind 
was  far  less  justifiable.  Even  if  the  institution  were 
exactly  what  Davis  supposed  it  to  be,  there  was  in- 
justice in  suddenly  disappointing  the  expectations  of 
the  distant  kindred  who  formed  the  sept  of  the  last 


206  IRELAND   AND   INDIA.  MCT.  vn, 

holder;  but  it  is  probable  that  several  different  modes 
of  succession  were  confounded  under  the  name  of 
Gavelkind,  and  that  in  many  cases  a  number  of 
children  were  unjustifiably  deprived  of  their  inherit- 
ance for  the  advantage  of  one.  All  that  can  be  said 
for  the  authors  of  the  revolution  is  that  they  seem  tc 
have  sincerely  believed  the  mischievousness  of  the 
institutions  they  were  destroying ;  and  it  is  some  evi- 
dence of  this  that,  when  their  descendants  a  century 
later  really  wished  to  inflict  an  injury  on  the  majority 
of  Irishmen,  they  re-introduced  Gavelkind,  though 
not  in  its  most  ancient  shape.  They  '  ga veiled  '  the 
lands  of  Papists  and  made  them  descendible  to  all 
the  children  alike.  There  seems  to  me  a  melancholy 
resemblance  between  some  of  the  mistakes  which,  at 
two  widely  distant  epochs,  were  committed  by  Eng- 
lishmen, apparently  with  the  very  best  intentions, 
when  they  were  brought  into  contact  with  stages  in 
the  development  of  institutions  earlier  than  that 
which  their  own  civilisation  had  reached.  Sir  John 
Davis's  language  on  the  subject  of  the  Irish  custom 
of  Gavelkind  might  be  that  of  an  Anglo-Indian 
lawyer  who  should  violently  censure  the  Brahminical 
jurists  for  not  confounding  families. with  joint  un- 
divided families.  I  do  not  know  that  any  such  mis- 
take has  been  made  in  India,  though  undoubtedly 
the  dissolution  of  the  Joint  Family  was  in  the  early 
days  of  our  government  unduly  encouraged  by  our 


LZCT.  vir.  IRELAND,    INDIA,   AND    RUSSIA.  207 

Courts.  But  there  is  a  closer  and  more  unfortunate 
similarity  between  some  of  the  English  experiments 
in  Ireland  and  those  tried  in  India.  Under  an  Act 
of  the  twelfth  year  of  Queen  Elizabeth  the  Lord 
Deputy  was  empowered  to  take  surrenders  and  regrant 
estates  to  the  Irishry.  The  Irish  lords,  says  Davis, 
'  made  surrenders  of  entire  countries,  and  obtained 
grants  of  the  whole  again  to  themselves  only,  and 
none  other,  and  all  in  demesne.  In  passing  of  which 
grants,  there  was  no  care  taken  of  the  inferior  septs 
of  people.  ...  So  that  upon  every  such  surrender  or 
grant,  there  was  but  one  freeholder  made  in  a  whole 
country,  which  was  the  lord  himself;  all  the  rest  were 
but  tenants  at  will,  or  rather  tenants  in  villenage.' 
There  are  believed  to  be  many  Indian  joint-families 
or  septs  which,  in  their  later  form  of  village-commu- 
nities, had  the  whole  of  their  lands  similarly  conferred 
on  a  single  family  out  of  their  number,  or  on  a  royal 
taxgatherer  outside  them,  under  the  earliest  Indian 
settlements.  The  error  was  not  in  introducing  abso- 
lute ownership  into  Ireland  or  India,  but  in  the 
apportionment  of  the  rights  of  which  property  is  made 
up.  How,  indeed,  this  apportionment  shall  be  wisely 
and  justly  made,  when  the  time  has  fully  come  for 
putting  individual  property  in  the  place  of  collective 
property  by  a  conscious  act  of  the  State,  is  a  pro- 
blem which  taxes  to  the  utmost  the  statesmanship  of 
the  most  advanced  era,  when  animated  by  the  highest 


208  DIVISIONS   OF   THE   IIJISII   FAMILY.         LECT.  vn. 

benevolence  and  informed  with  the  widest  knowledge. 
It  has  been  reserved  for  our  own  generation  to  wit- 
ness the  least  unsatisfactory  approach  which  has 
hitherto  been  made  towards  the  settlement  of  this 
grave  question  in  the  great  measures  collectively 
known  as  the  enfranchisement  of  the  Russian  serfs. 

The  Irish  practice  of  Tanistry  connects  itself  with 
the  rule  of  Primogeniture,  and  the  Irish  Gavelkind 
with  the  rules  of  succession  most  widely  followed 
among  both  the  Eastern  and  W estern  branches  of  the 
Aryan  race ;  but  there  are  some  passages  in  the  Bre- 
hon  tracts  which  describe  an  internal  division  of  the 
Irish  Family,  a  classification  of  its  members  and  a 
corresponding  system  of  succession  to  property,  ex- 
tremely unlike  any  arrangement  which  we,  with  our 
ideas,  can  conceive  as  growing  out  of  blood-relation- 
ship. Possibly,  only  a  few  years  ago,  these  passages 
would  have  been  regarded  as  possessing  too  little 
interest  in  proportion  to  their  difficulty  for  it  to  be 
worth  anybody's  while  to  bestow  much  thought  upon 
their  interpretation.  But  some  reasons  may  be  given 
why  we  cannot  wholly  neglect  them. 

The  distribution  of  the  Irish  Family  into  the 
Geilfine,  the  Deirbhfine,  the  larfine,  and  the  Ind- 
fine — of  which  expressions  the  three  last  are  trans- 
lated the  True,  the  After,  and  the  End  Families — 
is  obscurely  pointed  at  in  several  texts  of  the  earlier 
volumes  of  the  translations ;  but  the  Book  of  Aicill, 


user.  YH.          DIVISIONS  OF  THE  IRISH  FAMILY.  209 

in  the  Third  Volume,  supplies  us  for  the  first  time 
with  statements  concerning  it  having  some  ap- 
proach to  precision.  The  learned  Editor  of  this  vo- 
lume, who  has  carefully  examined  them,  describes 
their  effect  in  the  following  language  :  4  Within  the 
Family,  seventeen  members  were  organised  in  four 
divisions,  of  which  the  junior  class,  known  as  the 
Geilfine  division,  consisted  of  five  persons ;  the 
Deirbhfine,  the  second  in  order ;  the  larfine,  the 
third  in  order;  and  the  Indfine,  the  senior  of  all, 
consisted  respectively  of  four  persons.  The  whole 
organisation  consisted,  and  could  only  consist,  of 
seventeen  members.  If  any  person  was  born  into 
the  Geilfine  division,  its  eldest  member  was  promoted 
into  the  Deirbhfine,  the  eldest  member  of  the  Deirbh- 
fine passed  into  the  larfine  ;  the  eldest  member  of  the 
larfine  moved  into  the  Indfine ;  and  the  eldest  mem- 
ber of  the  Indfine  passed  out  of  the  organisation 
altogether.  It  would  appear  that  this  transition  from 
a  lower  to  a  higher  grade  took  place  upon  the  intro- 
duction of  a  new  member  into  the  Geilfine  division, 
and  therefore  depended  upon  the  introduction  of  new 
members,  not  upon  the  death  of  the  seniors.' 

It  seems  an  inference  from  all  the  passages  bear- 
ing on  the  subject  that  any  member  of  the  Joint- 
family  or  Sept  might  be  selected  as  the  starting- 
point,  and  might  become  a  root  from  which  sprung 
as  many  of  these  groups  of  seventeen  men  as  he  had 

P 


210  DEGREES   OF   CONSANGUINITY.  IWJT.  TII. 

eons.  As  soon  as  any  one  of  the  sons  had  four  children, 
a  full  Geilfine  sub-group  of  five  persons  was  formed  ; 
but  any  fresh  birth  of  a  male  child  to  this  son  or  to 
any  of  his  male  descendants  had  the  effect  of  sending 
np  the  eldest  member  of  the  Geilfine  sub-group,  pro- 
vided always  he  were  not  the  person  from  whom  it 
had  sprung,  into  the  Deirbhfine.  A  succession  of 
such  births  completed  in  time  the  Deirbhfine  division, 
and  went  on  to  form  the  larfine  and  the  Indfine,  the 
After  and  the  End  Families.  The  essential  principle 
of  the  system  seems  to  me  a  distribution  into  fours. 
The  fifth  person  in  the  Geilfine  division  I  take  to  be 
the  parent  from  whom  the  sixteen  descendants  spring, 
and  it  will  be  seen,  from  the  proviso  which  I  inserted 
above,  that  I  do  not  consider  his  place  in  the  organi- 
sation to  have  been  ever  changed.  He  appears  to  be 
referred  to  in  the  tracts  as  the  Geilfine  Chief. 

The  interest  of  this  distribution  of  the  kinsmen 
consists  in  this  :  whatever  else  it  is,  it  is  not  a  classi- 
fication of  the  members  of  the  family  founded  on 
degrees  of  consanguinity,  as  we  understand  them. 
And,  even  if  we  went  no  farther  than  this,  the  fact 
would  suggest  the  general  reflection  which  often  oc- 
curs to  the  student  of  the  history  of  law,  that  many 
matters  which  seem  to  us  altogether  simple,  natural, 
and  therefore  probably  universal,  are  in  reality  arti- 
ficial and  confined  to  limited  spheres  of  application. 
When  one  of  us  opens  his  Prayer-book  and  glances 


LBCT.  vn.   FAMILY  NOT  DIVIDED  ACCORDING  TO  DEGREES.    211 

at  the  Table  of  Prohibited  Degrees,  or  when  the  law- 
student  turns  to  his  Blackstone  and  examines  the 
Table  of  Descents,  he  possibly  knows  that  disputes 
have  arisen  about  the  rights  and  duties  proper  to 
be  adjusted  to  these  scales  of  relationship,  but  it 
perhaps  has  never  occurred  to  him  that  any  other 
view  of  the  nature  of  relationship  than  that  upon 
which  they  are  based  could  possibly  be  entertained. 
Yet  here  in  the  Book  of  Aicill  is  a  conception  of 
kinship  and  of  the  rights  flowing  from  it  altogether 
different  from  that  which  appears  in  the  Tables  of 
Degrees  and  of  Descents.  The  groups  are  not  formed 
upon  the  same  principles,  nor  distinguished  from  one 
another  on  the  same  principles.  The  English  Table* 
are  based  upon  a  classification  by  degrees,  upon 
identity  in  the  number  of  descents  by  which  a  given 
class  of  persons  are  removed  from  a  given  person. 
But  the  ancient  Irish  classification  obviously  turns 
upon  nothing  of  the  sort.  A  Geilfine  class  may  con- 
sist of  a  father  and  four  sons  who  are  not  in  the  same 
degree,  and  the  Brehon  writers  even  speak  of  its 
consisting  of  a  father,  son,  grandson,  great-grandson, 
and  great-great-grandson,  which  is  a  conceivable  case 
of  Geilfine  relationship,  though  it  can  scarcely  have 
been  a  common  one.  Now,  each  of  these  relatives  is 
in  a  different  degree  from  the  others.  Yet  this  dis- 
tribution of  the  family  undoubtedly  affected  the  law 
of  inheritance,  and  the  Geilfine  class,  to  our  eyes  so 

p2 


212     DESCEIPTIVE   AND   CLASSIFICATORY  SYSTEMS,    JUKI.  Yn. 

anomalous,  might  succeed  in  certain  eventualities  to 
the  property  of  the  other  classes,  of  which  the  compo- 
sition is  in  our  eyes  equally  arbitrary. 

This  singular  family  organisation  suggests,  how- 
ever, a  question  which,  in  the  present  state  of  enquiry 
on  the  subject  which  occupies  us,  cannot  fairly  be 
avoided.     I  have  spoken  before  of  a  volume  on  4  Sys- 
tems of  Consanguinity  and  Affinity  in  the  Human 
Family,'  published  by  the  Smithsonian  Institute  at 
Washington.     The  author,  Mr.  Lewis  Morgan,  is  one 
of  the  comparatively  few  Americans  who  have  per- 
ceived that,  if  only  on  the  score  of  the  plain  extant 
evidences  of  the  civilisation  which  was  once  enjoyed 
and  lost  by  some  branches  of  their  stock,  the  customs 
and   ideas  of  the   Red  Indians  deserve   intelligent 
study.     In  prosecuting  his  researches  Mr.  Morgan 
was  struck  with  the  fact  that  the  conception  of  Kin- 
ship entertained  by  th«  Indians,  though  extremely 
clear  and  precise,  and  regarded  by  them  as  of  much 
importance,  was  extremely  unlike  that  which  prevails 
among  the  now  civilised  races.     He  then  commenced 
a  laborious  investigation  of  the  whole  subject,  chiefly 
through  communications  with  correspondents  in  all 
parts  of  the  world.     The  result  at  which  he  arrived 
was  that  the  ideas  on  the  subject  of  relationship  en- 
tertained by  the  human  family  as  a  whole  were  extra- 
ordinarily various,  but  that  a  generalisation  was  pos- 
sible, and  that  these  ideas  could  be  referred  to  one  or 


LECT.  TIL   DESCRIPTIVE   AIST)    CLASSIFICATORY  SYSTEMS.      213 

other  of  two  distinct  systems,  which  Mr.  Morgan  calls 
respectively  the  Descriptive  and  the  Classificatory 
system.  The  tune  at  our  command  will  only  allow 
me  to  explain  his  meaning  very  briefly.  The  De- 
scriptive system  is  that  to  which  we  are  accustomed. 
It  has  come  to  us  from  the  Canon  law,  or  else  from 
the  Roman  law,  more  particularly  as  declared  in 
the  118th  Novel  of  Justinian,  but  it  is  not  at  all  con- 
fined to  societies  deeply  affected  by  Civil  and  Canon 
law.  Its  essence  consists  in  the  giving  of  separate 
names  to  the  classes  of  relatives  which  are  formed  by 
the  members  of  the  family  who  are  removed  by  the 
same  number  of  descents  from  yourself,  the  ego  or 
propositus,  or  from  some  common  ancestor.  Thus, 
your  uncle  stands  to  you  in  the  third  degree,  there 
being  one  degree  or  step  from  yourself  to  your  father 
or  mother,  a  second  from  your  father  or  mother  to  their 
parents,  a  third  from  those  parents  to  their  other 
children,  among  whom  are  your  uncles.  And  '  uncle ' 
is  a  general  name  for  all  male  relatives  standing  to 
you  in  this  third  degree.  The  other  names  employed 
under  the  Descriptive  system  are  among  the  words 
in  most  common  use;  yet  it  is  to  be  noted  that  the 
system  cannot  in  practice  be  carried  very  far.  We 
speak  of  uncle,  aunt,  nephew,  niece,  cousin ;  but  then 
we  get  to  great-uncle,  grand-nephew,  and  so  forth, 
and  at  length  lose  our  way  amid  complications  of 
4  great '  and  ( grand '  until  we  cease  to  distinguish  our 


214        THE   CLASSiriCATOftY  SYSTEM   OF   KINSHIP.    LECT.  vn. 

distant  kindred  by  particular  designations.  The 
Roman  technical  law  went  considerably  farther  than 
we  do  with  the  specific  nomenclature  of  relatives ; 
yet  there  is  reason  to  think  that  the  popular  dialects 
of  Latin  were  more  barren,  and  no  Descriptive  sys- 
tem can  go  on  indefinitely  with  the  process.  On  the 
other  hand,  the  Classificatory  system  groups  the 
relatives  in  classes,  often  large  ones,  which  have  no 
necessary  connection  with  degrees.  Under  it  a  man's 
father  and  his  uncles  are  grouped  together,  sometimes 
his  uncles  on  his  father's  side,  sometimes  on  the 
mother's  side,  sometimes  on  both ;  and  perhaps  they 
are  all  indifferently  called  his  fathers.  Similarly,  a 
man's  brothers  and  all  his  male  cousins  may  be  classed 
together  and  called  his  brothers.  The  effect  of  the 
system  is  in  general  to  bring  within  your  mental 
grasp  a  much  greater  number  of  your  kindred  than 
is  possible  under  the  System  to  which  we  are  accus- 
tomed. This  advantage  is  gained,  it  is  true,  at  the 
expense  of  the  power  of  discriminating  between  the 
members  of  the  several  classes,  but  still  it  may  be 
very  important  in  certain  states  of  society,  since  each 
of  the  classes  usually  stands  under  some  sort  of  con- 
joint responsibility. 

I  am  not  now  concerned  with  the  explanation  of 
the  Classificatory  system  of  Kinship.  Mr.  Morgan 
and  the  school  to  which  he  belongs  find  it,  as  I  said 
before,  in  a  state  of  sexual  relations,  alleged  to  have 


LECT.  VIT.  MEANING    OF    IEISII   DIVISION.  215 

once  prevailed  universally  throughout  the  human 
race,  and  known  now  to  occur  in  some  obscure  frag- 
ments of  it.  The  fullest  account  of  the  condition  of 
society  in  which  these  views  of  relationship  are  be- 
lieved to  have  grown  up  may  be  read  in  Mr.  McLen- 
nan's  most  original  work  on  Primitive  Marriage.  The 
point  before  us,  however,  is  whether  we  have  a  trace 
of  the  Classificatory  system  in  the  Irish  division  of 
the  Family  into  four  small  groups,  no  one  of  which  is 
necessarily  composed  of  relatives  of  the  same  degree, 
and  each  of  which  has  distinct  rights  of  its  own,  and 
stands  under  definite  responsibilities.  Undoubtedly, 
the  Descriptive  system  was  that  which  the  ancient 
Irish  generally  followed;  but  still  it  would  be  an  in- 
teresting, and,  in  the  opinion  of  pre-historic  writers, 
an  important  fact,  if  a  distribution  of  the  Family  only 
intelligible  as  a  relic  of  the  Classificatory  system 
remained  as  a  'survival'  among  the  institutions  re- 
flected by  the  Brehon  Laws.  My  own  opinion,  which 
I  will  state  at  once,  is  that  the  resemblance  between  the 
Irish  classification  of  kindred  and  the  modes  of  classi- 
fication described  by  Mr.  Morgan  is  only  superficial 
and  accidental.  The  last  explanation  Mr.  A!  organ 
would  admit  of  the  remarkable  ideas  concerning  kin- 
ship which  form  the  subject  of  his  book  would  be 
that  they  are  connected  with  the  Patria  Potestas,  that 
famous  institution  which  held  together  what  he  and 
his  school  consider  to  be  a  relatively  modern  form  of 


21 G  ETYMOLOGY   OP   GEILFHST3.  LECT.  vix. 

the  Family.  I  think,  however,  I  can  assign  some  at 
least  plausible  reasons  for  believing  that  this  perplex- 
ing four-fold  division  of  the  Celtic  Family  is  neither 
a  mere  survival  from  immemorial  barbarism  nor,  as 
most  persons  who  have  noticed  it  have  supposed,  a 
purely  arbitrary  arrangement,  but  a  monument  of  that 
Power  of  the  Father  which  is  the  first  and  greatest 
land-mark  in  the  course  of  legal  history. 

Let  me  repeat  that  the  Irish  Family  is  assumed  to 
consist  of  three  groups  of  four  persons  and  one  group 
of  five  persons.  I  have  already  stated  that  I  consider 
the  fifth  person  in  the  group  of  five  to  be  the  parent 
from  whom  all  the  other  members  of  the  four  divisions 
spring,  or  with  whom  they  are  connected  by  adoptive 
descent.  Thus,  the  whole  of  the  natural  or  adoptive 
descendants  are  distributed  into  four  groups  of  four 
persons  each,  then*  rank  in  the  Family  being  in  the 
inverse  order  of  their  seniority.  The  Geilfine  group 
is  several  times  stated  by  the  Brehon  lawyers  to  be 
at  once  the  highest  and  the  youngest. 

Now,  Mr.  Whitley  Stokes  has  conveyed  to  me  his 
opinion  that  *  Geilfine '  means  '  hand-family.'  As  I 
have  reason  to  believe  that  a  different  version  of  the 
term  has  been  adopted  by  eminent  authority,  I  will 
give  the  reasons  for  Mr.  Stokes's  view.  '  Gil '  means 
4  hand' — this  was  also  the  rendering  of  O'Curry — and 
it  is,  in  fact,  the  Greek  word  x*ip.  In  several  Aryan 
languages  the  term  signifying  *  hand '  is  an  expressive 


LECT.  TU.  IRISH  AND   ROMAN  FAMILY.  217 

equivalent  for  Power,  and  specially  for  lamily  or 
Patriarchal  Power.  Thus,  in  Greek  we  have  vn-o^ci/aiog 
and  x^P7)^  f°r  *ne  Person  under  the  hand.  In  Latin 
we  have  herus  *  master,'  from  an  old  word,  cognate 
to  x^P  5  and  we  have  also  one  of  the  cardinal  terms  of 
ancient  Roman  Family  Law,  manus,  or  hand,  in  the 
sense  of  Patriarchal  authority.  In  Roman  legal  phra- 
seology, the  wife  who  has  become  in  law  her  husband's 
daughter  by  marriage  is  in  manu.  The  son  discharged 
from  Paternal  Power  is  emancipated.  The  free  person 
who  has  undergone  manumission  is  in  mandpio.  In  the 
Celtic  languages  we  have,  with  other  words,  'Gilla,' 
a  servant,  a  word  familiar  to  sportsmen  and  travellers 
in  the  Highlands  and  to  readers  of  Scott  in  its 
Anglicised  shape,  '  Gillie.' 

My  suggestion,  then,  is  that  the  key  to  the  Irish 
distribution  of  the  Family,  as  to  so  many  other  things 
in  ancient  law,  must  be  sought  in  the  Patria  Potestas.  ^ 
It  seems  to  me  to  be  founded  on  the  order  of  eman- 
cipation from  Paternal  authority.  The  Geilfine,  the 
Hand-family,  consists  of  the  parent  and  the  four 
natural  or  adoptive  sons  immediately  under  his 
power.  The  other  groups  consist  of  emancipated 
descendants,  diminishing  hi  dignity  in  proportion  to 
their  distance  from  the  group  which,  according  to 
archaic  notions,  constitutes  the  true  or  representative 
family. 

The  remains  which  we  possess  of  the  cidest  Ro- 


218  ANCIENT  ROMAN    AND   IRISH  FAMILY.      IECT.  vn. 

man  law  point  to  a  range  of  ideas  very  similar  to  that 
which  appears  to  have  produced  the  Irish  institution. 
The.  Family  under  Patria  Potestas  was,  with  the  Pater 
Familias,  the  true  Roman  Family.  The  children  who 
were  emancipated  from  Paternal  Power  may  have 
gained  a  practical  advantage,  but  they  undoubtedly 
lost  in  theoretical  dignity.  They  underwent  that 
loss  of  status  which  in  ancient  legal  phraseology  was 
called  a  capitis  deminutio.  We  know  too  that,  according 
to  primitive  Roman  law,  they  lost  all  rights  of  in- 
heritance, and  these  were  only  gradually  restored  to 
them  by  a  relatively  modern  institution,  the  Equity  of 
the  Roman  Prator.  Nevertheless  there  are  hints  on 
all  sides  that,  as  a  general  rule,  sons  as  they  advanced 
in  years  were  enfranchished  from  Paternal  Power,  and 
no  doubt  this  practice  supplies  a  partial  explanation 
of  the  durability  of  the  Patria  Potestas  as  a  Roman 
institution.  The  statements,  therefore,  which  we 
find  concerning  the  Celtic  Family  would  not  be  very 
untrue  of  the  Roman.  The  youngest  children  were 
first  in  dignity. 

Of  course  I  am  not  contending  for  an  exact  re- 
semblance between  the  ancient  Roman  and  ancient 
Celtic  Family.  We  have  no  trace  of  any  systematise 
discharge  of  the  sons  from  the  Roman  Patria  Potes- 
tas; their  enfranchisement  seems  always  to  have  been 
dependent  on  the  will  of  the  Pater-Familias.  The 
divisions  of  the  Celtic  Family  seem,  on  the  other 


LBCT.  TO.    INHERITANCE   AND    DIVISIONS    OF   FAMILY.  219 

hand,  to  have  been  determined  by  a  self-acting  prin- 
ciple. An  even  more  remarkable  distinction  is  sug- 
gested by  passages  in  the  Book  of  Aicill  which  seem 
to  show  that  the  parent,  who  retained  his  place  in  the 
Geilfine  group,  might  himself  have  a  father  alive. 
The  peculiarity,  which  has  no  analogy  in  ancient 
Roman  law,  may  possibly  have  its  explanation  in 
usages  which  many  allusions  in  the  Brehon  law  show 
to  have  been  followed  by  the  Celts,  as  they  were  by 
several  other  ancient  societies.  The  older  members 
of  the  Family  or  Joint  Family  seem  in  advanced  age 
to  have  become  pensioners  on  it,  and,  like  Laertes 
in  the  Odyssee,  to  have  vacated  their  privileges  of 
ownership  or  of  authority.  On  such  points,  however, 
it  is  safest  to  suspend  the  judgment  till  the  Brehon 
law  has  been  more  thoroughly  and  critically  ex- 
amined. 

At  the  date  at  which  the  Book  of  Aicill  was  put 
together  the  Irish  division  of  the  Family  seems  only 
to  have  had  importance  in  the  law  of  succession  after 
death.  This,  however,  is  the  rule  in  all  societies. 
When  the  ancient  constitution  of  the  Family  has 
ceased  to  affect  anything  else,  it  affects  inheritance. 
All  laws  of  inheritance  are,  in  fact,  made  up  of  the 
debris  of  the  various  forms  which  the  Family  has  as- 
sumed. Our  system  of  succession  to  personalty,  and 
the  whole  French  law  of  inheritance,  are  derived 
from  Roman  law,  which  in  its  latest  condition  is  a 


220  THE   NUMBER   FIVE.  MOT.  vn. 

mixture  of  rules  having  their  origin  in  successive 
ascertainable  stages  of  the  Roman  Family,  and  is  a 
sort  of  compromise  between  them. 

The  authors  of  the  Brehon  Law  Tracts  frequently 
compare  the  Geilfine  division  of  the  Family  to  the 
human  hand,  but  with  them  the  comparison  has  at 
first  sight  the  air  of  being  purely  fanciful.  The  Geil- 
fine group  has  five  members,  and  the  hand  has  five 
fingers.  Dr.  Sullivan — who,  however,  conceives  the 
Geilfine  in  a  way  materially  different  from  the 
authorities  whom  I  follow — tells  us  that  '  as  they 
represented  the  roots  of  the  spreading  branches  of 
the  Family,  they  were  called  the  cuic  mera  na  Fine, 
or  the  *  five  fingers  of  the  Fine.'  If  the  explanation 
of  c  Geilfine  '  which  I  have  partly  taken  from  Mr. 
Whitley  Stokes  be  correct,  we  must  suppose  that,  at 
the  time  at  which  the  Brehon  tracts  were  thrown 
into  their  present  form,  the  Patria  Potestas  of  the 
ancient  Irish,  though  frequently  referred  to  in  the 
tracts  as  the  father's  power  of  'judgment,  proof,  and 
witness'  over  his  sons,  had  nevertheless  consider- 
ably decayed,  as  it  is  apt  to  do  in  all  societies  tinder 
unfavourable  circumstances,  and  that  with  this  decay 
the  association  of  the  Geiltine  group  with  '  hand ' 
in  the  sense  of  Paternal  Power  had  also  become 
faint.  There  is,  however,  a  real  connection  of  an- 
other kind  between  the  Geilfine  group  and  the  five 
fingers  of  the  hand.  If  you  ask  why  in  a  large 


LECT.  TH.  BOROUGH    ENGLISH.  221 

number  of  ancient  societies  Five  is  the  representative 
number,  no  answer  can  be  given  except  that  there 
are  five  fingers  on  the  human  hand.  I  commend  to 
your  attention  on  this  point  Mr.  Tylor's  most  in- 
structive chapter  on  the  infancy  of  the  Art  of 
Counting,  in  the  first  volume  of  his  '  Primitive  Cul- 
ture.' 'Finger-counting,'  he  observes,  'is  not  only 
found  among  savages  and  uneducated  men,  carrying 
on  a  part  of  their  mental  operations  where  language 
is  only  partly  able  to  follow  it,  but  it  also  retains  a 
place  and  an  undoubted  use  among  the  most  cultured 
nations  as  a  preparation  and  means  of  acquiring 
higher  arithmetical  methods'  (I.  246.)  Five  is 
thus  a  primitive  natural  maximum  number.  You 
will  recollect  that  the  early  English  Township  was 
represented  by  the  Reeve  and  the  four  men.  The 
Council  of  an  Indian  Village  Community  most  com- 
monly consists  of  five  persons,  and  throughout  the 
East  the  normal  number  of  a  Jury  or  Board  of 
arbitrators  is  always  five — the  punchayet  familiar  to 
all  who  have  the  smallest  knowledge  of  India.  The 
Geilfine,  the  representative  group  of  the  Irish  Family, 
consisting  of  the  Parent  and  the  four  descendants  still 
retained  under  his  Patria  Potestas,  falls  in  with  this 
widely  extended  conception  of  representation. 

The  Patria  Potestas  seems  to  me  the  most 
probable  source  of  a  well-known  English  custom 
which  has  occasioned  no  little  surprise  to  students 


222  EXPLANATIONS   OF  BOROUGH   ENGLISH.      LECX.  VIL 

of  our  law.  *  Borough  English,*  under  which  the 
youngest  son  and  not  the  eldest  succeeds  to  the 
burgage- tenements  of  his  father,  has  from  time  im- 
memorial being  recognised  as  a  widely  diffused 
usage  of  which  it  is  the  duty  of  our  Courts  to  take 
judicial  notice,  and  many  writers  on  our  real  property 
laws,  from  Littleton  downwards,  have  attempted  to 
account  for  it.  Littleton  thought  he  saw  its  origin 
in  the  tender  age  of  the  youngest  son,  who  was  not 
so  well  able  to  help  himself  as  the  rest  of  the 
brethren.  Other  authors,  as  Blackstone  tells  us, 
explained  it  by  a  supposed  right  of  the  Seigneur  or 
lord,  now  very  generally  regarded  as  apocryphal, 
which  raised  a  presumption  of  the  eldest  son's  ille- 
gitimacy. Blackstone  himself  goes  as  far  a-field  as 
North-Eastern  Asia  for  an  explanation.  He  quotes 
from  Duhalde  the  statement  that  the  custom  of 
descent  to  the  youngest  son  prevails  among  the  Tar- 
tars. *  That  nation,'  he  says,  4  is  composed  totally 
of  shepherds  and  herdsmen;  and  the  elder  sons,  as 
soon  as  they  are  capable  of  leading  a  pastoral  life, 
migrate  from  their  father  with  a  certain  allotment 
of  cattle,  and  go  to  seek  a  new  habitation.  The 
youngest  son,  therefore,  who  continues  longest  with 
the  father,  is  naturally  the  heir  of  his  house,  the  rest 
being  ahead}'  provided  for.  And  thus  we  find  that, 
among  many  other  Northern  nations,  it  was  the 
custom  for  all  the  sons  but  one  to  migrate  from  the 


twrr.  YH.     PRIMOGENITURE   AND   BOROUGH   ENGLISH.          223 

i'ather,  which  one  now  became  his  heir.'  The  expla- 
nation was  really  the  best  which  could  be  given  in 
Blackstone's  day,  but  it  was  not  necessary  to  go  for 
it  so  far  from  home.  It  is  a  remarkable  circumstance 
that  an  institution  closely  resembling  Borough  Eng- 
lish is  found  in  the  Laws  of  Wales,  giving  the  rule  of 
descent  for  all  cultivating  villeins.  *  Cum  fratres 
inter  se  dividant  hsereditatem,'  says  a  rule  of  that 
portion  of  the  Welsh  Law  which  has  survived  in 
Latin  ;  'junior  debet  habere  tygdyn,  i.e.  sedificia 
patris  sui,  et  octo  acras  de  terra,  si  habuerint '  (L. 
Wall.,  vol.  ii.  p.  780).  And,  when  the  youngest  son 
has  had  the  paternal  dwelling-house,  eight  acres  of 
land  and  certain  tools  and  utensils,  the  other  sons  are 
to  divide  what  remains.  It  appears  to  me  that  the 
institution  is  founded  on  the  same  ideas  as  those 
which  gave  a  preference  to  the  Geilfine  division  ot 
the  Celtic  family.  The  home-staying,  unemancipated 
son,  still  retained  under  Patria  Potestas,  is  preferred 
to  the  others.  If  this  be  so,  there  is  no  room  for  the 
surprise  which  the  custom  of  Borough  English  has 
excited,  and  which  arises  from  contrasting  it  with  the 
rule  of  Primogeniture.  But  the  two  institutions 
have  a  different  origin.  Primogeniture  is  not  a 
natural  outgrowth  of  the  family.  It  is  a  political 
not  a  tribal  institution,  and  comes  to  us  not  from 
the  clansmen  but  from  the  Chief.  But  the  rule  of 
Borough  English,  like  the  privileges  of  the  Geilfine, 


224          PRIMOGENITURE  AND   BOROUGH  ENGLISH.    LECT.  m. 

is  closely  connected  with  the  ancient  conception  of 
the  Family  as  linked  together  by  Patria  Potestas. 
Those  who  are  most  emphatically  part  of  the  Family 
when  it  is  dissolved  by  the  death  of  its  head  are 
preferred  in  the  inheritance  according  to  ideas  which 
appear  to  have  been  once  common  to  the  primitive 
Romans,  to  the  Irish  and  Welsh  Celts,  and  to  the 
original  observers,  whoever  they  were,  of  the  English 
custom 


user.  vm.  COMPARATIVE   MYTHOLOGY.  226 


LECTURE  VIII. 

THE    GROWTH   AND   DIFFUSION   OF   PRIMITIVE   IDEAS. 

MR.  TYLOR  has  justly  observed  that  the  true  lesson 
of  the  new  science  of  Comparative  Mythology  is  the 
barrenness  in  primitive  times  of  the  faculty  which  we 
most  associate  with  mental  fertility,  the  Imagination. 
Comparative  Jurisprudence,  as  might  be  expected 
from  the  natural  stability  of  law  and  custom,  yet 
more  strongly  suggests  the  same  inference,  and  points 
to  the  fewness  of  ideas  and  the  slowness  of  additions 
to  the  mental  stock  as  among  the  most  general  cha- 
racteristics of  mankind  in  its  infancy. 

The  fact  that  the  generation  of  new  ideas  does  not 
proceed  in  all  states  of  society  as  rapidly  as  in  that 
to  which  we  belong,  is  only  not  familiar  to  us  through 
our  inveterate  habit  of  confining  our  observation  of 
human  nature  to  a  small  portion  of  its  phenomena. 
When  we  undertake  to  examine  it,  we  are  very  apt 
to  look  exclusively  at  a  part  of  Western  Europe  and 
perhaps  of  the  American  Continent.  We  constantly 
leave  aside  India,  China,  and  the  whole  Mahometan 

Q 


226  IDEAS   OF   THE   EAST.  LECT. 

East.  This  limitation  of  our  field  of  vision  is  per- 
fectly justifiable  when  we  are  occupied  with  the 
investigation  of  the  laws  of  Progress.  Progress  is,  in 
fact,  the  same  thing  as  the  continued  production  of 
new  ideas,  and  we  can  only  discover  the  law  of  this 
production  by  examining  sequences  of  ideas  where 
they  are  frequent  and  of  considerable  length.  But 
the  primitive  condition  of  the  progressive  societies  is 
best  ascertained  from  the  observable  condition  of 
those  which  are  non-progressive ;  and  thus  we  leave 
a  serious  gap  in  our  knowledge  when  we  put  aside 
the  mental  state  of  the  millions  upon  millions  of  men 
who  fill  what  we  vaguely  call  the  East  as  a  pheno- 
menon of  little  interest  and  of  no  instructiveness. 
The  fact  is  not  unknown  to  most  of  us  that,  among 
these  multitudes,  Literature,  Religion,  and  Art — or 
what  corresponds  to  them — move  always  within  a 
distinctly  drawn  circle  of  unchanging  notions;  but 
the  fact  that  this  condition  of  thought  is  rather  the 
infancy  of  the  human  mind  prolonged  than  a  different 
maturity  from  that  most  familiar  to  us,  is  very 
seldom  brought  home  to  us  with  a  clearness  rendering 
it  fruitful  of  instruction. 

I  do  not,  indeed,  deny  that  the  difference  between 
the  East  and  the  West,  in  respect  of  the  different 
speed  at  which  new  ideas  are  produced,  is  only  a 
difference  of  degree.  There  were  new  ideas  produced 
in  India  even  during  the  disastrous  period  just  before 


LECT.  vm.  SLOWNESS   OF   PROGRESS.  227 

the  English  entered  it,  and  in  the  earlier  ages  this 
production  must  have  been  rapid.  There  must  have 
been  a  series  of  ages  during  which  the  progress  of 
China  was  very  steadily  maintained,  and  doubtless 
our  assumption  of  the  absolute  immobility  of  the 
Chinese  and  other  societies  is  in  part  the  expression 
of  our  ignorance.  Conversely,  I  question  whether 
new  ideas  come  into  being  in  the  West  as  rapidly 
as  modern  literature  and  conversation  sometimes 
suggest.  It  cannot,  indeed,  be  doubted  that  causes, 
unknown  to  the  ancient  world,  lead  among  us  to  the 
multiplication  of  ideas.  Among  them  are  the  ?iever- 
ceasing  discovery  of  new  facts  of  nature,  inventions 
changing  the  circumstances  and  material  conditions 
of  life,  and  new  rules  of  social  conduct;  the  chief  of 
this  last  class,  and  certainly  the  most  powerful  in  the 
domain  of  law  proper,  I  take  to  be  the  famous  maxim 
that  all  institutions  should  be  adapted  to  produce  the 
greatest  happiness  of  the  greatest  number.  Never- 
theless, there  are  not  a  few  signs  that  even  conscious 
efforts  to  increase  the  number  of  ideas  have  a  very 
limited  success.  Look  at  Poetry  and  Fiction.  From 
time  to  time  one  mind  endowed  with  the  assemblage 
of  qualities  called  genius  makes  a  great  and  sudden 
addition  to  the  combinations  of  thought,  word  and 
sound  which  it  is  the  province  of  those  arts  to  pro- 
duce ;  yet  as  suddenly,  after  one  or  a  few  such  efforts, 
the  productive  activity  of  both  branches  of  invention 

tS 


228  LIMirS   TO   FERTILITY   OP   HUMAN   MIND.    LECT.  nn. 

ceases,  and  they  settle  down  into  imitativeness  for 
perhaps  a  century  at  a  time.  An  humbler  example 
may  be  sought  in  rules  of  social  habit.  We  speak  of 
the  caprices  of  Fashion ;  yet,  on  examining  them 
historically,  we  find  them  singularly  limited,  so  much 
so,  that  we  are  sometimes  tempted  to  regard  Fashion 
as  passing  through  cycles  of  form  ever  repeating 
themselves.  There  are,  in  fact,  more  natural  limita- 
tions on  the  fertility  of  intellect  than  we  always  admit 
to  ourselves,  and  these,  reflected  in  bodies  of  men, 
translate  themselves  into  that  weariness  of  novelty 
which  seems  at  intervals  to  overtake  whole  Western 
societies,  including  minds  of  every  degree  of  informa- 
tion and  cultivation. 

My  present  object  is  to  point  out  some  of  the 
results  of  mental  sterility  at  a  time  when  society  is  in 
the  stage  which  we  have  been  considering.  Then, 
the  relations  between  man  and  man  were  summed  up 
in  kinship.  The  fundamental  assumption  was  that 
all  men,  not  united  with  you  by  blood,  were  your 
enemies  or  your  slaves.  Gradually  the  assumption 
became  untrue  in  fact,  and  men,  who  were  not  blood 
relatives,  became  related  to  one  another  on  terms  of 
peace  and  mutual  tolerance  or  mutual  advantage. 
Yet  no  new  ideas  came  into  being  exactly  harmonis- 
ing with  the  new  relation,  nor  was  any  new  phrase- 
ology invented  to  express  it.  The  new  member  of 
each  group  was  spoken  of  as  akin  to  it,  was  treated  as 


LECT.  vra.  TRANSFORMATION   OF   IDEAS.  229 

akin  to  it,  was  thought  of  as  akin  to  it.  So  little 
were  ideas  changed  that,  as  we  shall  see,  the  very 
affections  and  emotions  which  the  natural  bond  evoked 
were  called  forth  in  extraordinary  strength  by  the  arti- 
ficial tie.  The  clear  apprehension  of  these  facts  throws 
light  on  several  historical  problems,  and  among  them 
on  some  of  Irish  history.  Yet  they  ought  not  greatly 
to  surprise  us,  since,  in  a  modified  form,  they  make 
part  of  our  everyday  experience.  Almost  everybody 
can  observe  that,  when  new  circumstances  arise,  we 
use  our  old  ideas  to  bring  them  home  to  us  ;  it  is 
only  afterwards,  and  sometimes  long  afterwards,  that 
our  ideas  are  found  to  have  changed.  An  English 
Court  of  Justice  is  in  great  part  an  engine  for  working 
out  this  process.  New  combinations  of  circumstance 
are  constantly  arising,  but  in  the  first  instance  they 
are  exclusively  interpreted  according  to  old  legal 
ideas.  A  little  later  lawyers  admit  that  the  old  ideas 
are  not  quite  what  they  were  before  the  new  circum- 
stances arose. 

The  slow  generation  of  ideas  in  ancient  times  may 
first  be  adduced  as  necessary  to  the  explanation  of 
that  great  family  of  Fictions  which  meet  us  on  the 
threshold  of  history  and  historical  jurisprudence. 
Specimens  of  these  fictions  may  be  collected  on  all 
sides  from  bodies  of  archaic  custom  or  rudimentary 
systems  of  law,  but  those  most  to  our  present  purpose 
are  fictitious  assumptions  of  blood-relationship.  Els*- 


230  FICTIONS  OF   CONSANGUINITY.  LECT.  vin. 

where  I  have  pointed  out  the  strange  conflict  between 
belief  or  theory  and  what  seems  to  us  notorious  fact, 
which  is  observable  in  early  Roman  and  Hellenic 
society.  '  It  may  be  affirmed  of  early  commonwealths 
that  their  citizens  considered  all  the  groups  in  which 
they  claimed  membership  to  be  founded  on  common 
lineage.  What  was  obviously  true  of  the  Family  was 
believed  to  be  true  first  of  the  House,  next  of  the 
Tribe,  lastly  of  the  State.  And  yet  we  find  that, 
along  with  this  belief,  each  community  preserved 
records  or  traditions  which  distinctly  showed  that 
the  fundamental  a&sumption  was  false.  Whether  we 
look  to  the  Greek  States,  or  to  Rome,  or  to  the 
Teutonic  aristocracies  in  Ditmarsh  which  furnished 
Niebuhr  with  so  many  valuable  illustrations,  or  to 
the  Celtic  clan  associations,  or  to  that  strange  social 
organisation  of  the  Sclavonic  Russians  and  Poles 
which  has  only  lately  attracted  notice,  everywhere 
we  discover  traces  of  passages  in  their  history  when 
men  of  alien  descent  were  admitted  to,  and  amalga- 
mated with,  the  original  brotherhood.  Adverting  to 
Rome  singly,  we  perceive  that  the  primary  group, 
the  Family,  was  being  constantly  adulterated  by  the 
practice  of  adoption,  while  stories  seem  to  have  been 
always  current  respecting  the  exotic  extraction  of  one 
of  the  original  Tribes,  and  concerning  a  large  addition 
to  the  Houses  made  by  one  of  the  early  Kings.  The 
composition  of  the  State  uniformly  assumed  to  be 


U5CT.  vm.  ASCIEXT    IRISH   FICTIONS.  281 

natural  was  nevertheless  known  to  be  in  great  mea- 
sure artificial.'  (Ancient  Law,  pp.  129,  130.)  The 
key  to  these  singular  phenomena  has  been  recently 
sought  in  the  ancient  religions,  and  has  been  supposed 
to  be  found  in  the  alleged  universal  practice  of  wor- 
shipping dead  ancestors.  Very  striking  illustrations  of 
them  are,  however,  supplied  by  the  law  and  usage  of 
Ireland  after  it  had  been  Christianised  for  centuries, 
and  long  after  any  Eponymous  progenitor  can  be 
conceived  as  worshipped.  The  Family,  House,  and 
Tribe  of  the  Romans — and,  so  far  as  my  knowledge 
extends,  all  the  analogous  divisions  of  Greek  commu- 
nities— were  distinguished  by  separate  special  name&. 
But  in  the  Brehon  Law,  the  same  word,  Fine  (or 
4  family '),  is  used  for  the  Family  as  we  ordinarily  un- 
derstand it — that  is,  for  the  children  of  a  living  parent 
and  their  descendants — for  the  Sept  or,  in  phrase  of 
Indian  law,  the  Joint  Undivided  Family,  that  is,  the 
combined  descendants  of  an  ancestor  long  since  dead — 
for  the  Tribe,  which  was  the  political  unit  of  ancient 
Ireland,  and  even  for  the  large  Tribes  in  which  the 
smaller  units  were  sometimes  absorbed.  Nevertheless 
the  Irish  Family  undoubtedly  received  additions 
through  Adoption.  The  Sept,  or  larger  group  of 
kindred,  had  a  definite  place  for  strangers  admitted 
to  it  on  stated  conditions,  the  Fine  Taccair.  The 
Tribe  avowedly  included  a  number  of  persons,  mostly 
refugees  from  other  Tribes,  whose  only  connection 


232  TRIBAL   ORIGIN   OF   GUILDS.  utcr.  vm. 

with  it  was  common  allegiance  to  its  Chief.  Moreover 
the  Tribe  in  its  largest  extension  and  considered  a 
political  as  well  as  a  social  unit  might  have  been 
absorbed  with  others  in  a  Great  or  Arch  Tribe,  and 
here  the  sole  source  of  the  kinship  still  theoretically 
maintained  is  Conquest.  Yet  all  these  groups  were 
in  some  sense  or  other  Families. 

Nor  does  the  artificiality  solely  consist  in  the  ex- 
tension of  the  sphere  of  kinship  to  classes  known  to 
have  been  originally  alien  to  the  true  brotherhood. 
An  even  more  interesting  example  of  it  presents  itself 
when  the  ideas  of  kinship  and  the  phraseology  proper 
to  consanguinity  are  extended  to  associations  which 
we  should  now  contemplate  as  exclusively  founded  on 
contract,  such  as  partnerships  and  guilds.  There  are 
no  more  interesting  pages  in  Dr.  Sullivan's  Introduc- 
tion (pp.  ccvi  et  seq.)  than  those  in  which  he  discusses 
the  tribal  origin  of  Guilds.  He  claims  for  the  word 
itself  a  Celtic  etymology,  and  he  traces  the  institu- 
tion to  the  grazing  partnerships  common  among  the 
ancient  Irish.  However  this  may  be,  it  is  most 
instructive  to  find  the  same  words  used  to  describe 
bodies  of  co- partners,  formed  by  contract,  and  bodies 
of  co-heirs  or  co-parceners  formed  by  common  descent. 
Each  assemblage  of  men  seems  to  have  been  conceived 
as  a  Family.  As  regards  Guilds,  I  certainly  think,  as 
I  thought  three  years  ago,  that  they  have  been  much 
too  confidently  attributed  to  a  relatively  mrdern 


LPxrr.  vin  LONDON   COMPANIES.  233 

origin ;  and  that  many  of  them,  and  much  which  is 
common  to  all  of  them,  may  be  suspected  to  have 
grown  out  of  the  primitive  brotherhoods  of  co-villagers 
and  kinsmen.  The  trading  guilds  which  survive  in 
our  own  country  have  undergone  every  sort  of  trans- 
mutation which  can  disguise  their  parentage.  They 
are  artificial  to  begin  with,  though  the  hereditary 
principle  has  a  certain  tendency  to  assert  itself.  They 
have  long  since  relinquished  the  occupations  which 
gave  them  a  name.  They  mostly  trace  their  privi- 
leges and  constitution  to  some  royal  charter ;  and 
kingly  grants,  real  or  fictitious,  are  the  great  cause 
of  interruption  in  English  History.  Yet  anybody 
who,  with  a  knowledge  of  primitive  law  and  history, 
examines  the  internal  mechanism  and  proceedings  of 
a  London  Company  will  see  in  many  parts  of  them 
plain  traces  of  the  ancient  brotherhood  of  kinsmen, 
*  joint  in  food,  worship,  and  estate  ; '  and  I  suppose 
that  the  nearest  approach  to  an  ancient  tribal  holding 
in  Ireland  is  to  be  found  in  those  confiscated  lands 
which  are  now  the  property  of  several  of  these 
Companies. 

The  early  history  of  Contract,  I  need  scarcely  tell 
you,  is  almost  exclusively  to  be  sought  in  the  history 
of  Roman  law.  Some  years  ago  I  pointed  to  the 
entanglement  which  primitive  Roman  institutions 
disclose  between  the  conveyance  of  property  and 
the  contract  of  sale.  Let  me  now  observe  that 


234  ORIGIN   OF  PARTNERSHIP  LBCT   via 

one  or  two  others  of  the  great  Roman  contracts 
appear  to  me,  when  closely  examined,  to  afford  evi- 
dence of  their  having  been  gradually  evolved  through 
changes  in  the  mechanism  of  primitive  society.  You 
have  seen  how  brotherhoods  of  kinsmen  transform 
themselves  into  alliances  between  persons  whom  we 
can  only  call  partners,  but  still  at  first  sight  the 
link  is  missing  which  would  enable  us  to  say  that 
here  we  have  the  beginning  of  the  contract  of  part- 
nership. Look,  however,  at  the  peculiar  contract 
called  by  the  Romans  '  societas  omnium  (or  universo- 
rum)  bonorum!  It  is  commonly  translated  '  partner- 
ship with  unlimited  liability,'  and  there  is  no  doubt 
that  the  elder  form  of  partnership  has  had  great 
effect  on  the  newer  form.  But  you  will  find  that,  in 
the  societas  omnium  bonorum,  not  only  were  all  the 
liabilities  of  the  partnership  the  liabilities  of  the  se- 
veral partners,  but  the  whole  of  the  property  of  each 
partner  was  brought  into  the  common  stock  and  was 
enjoyed  as  a  common  fund.  No  such  arrangement 
as  this  is  known  in  the  modern  world  as  the  result  of 
ordinary  agreement,  though  in  some  countries  it  may 
be  the  effect  of  marriage.  It  appears  to  me  that  we 
are  carried  back  to  the  joint  brotherhoods  of  primitive 
society,  and  that  their  development  must  have  given 
rise  to  the  contract  before  us.  Let  us  turn  again  to 
the  contract  of  Mandatum  or  Agency.  The  only 
complete  representation  of  one  man  by  another  which 


LECT.  VOT.  THE   ANCIENT   IRISH   CHUBCH.  2;Jo 

the  Roman  law  allowed  was  the  representation  of  the 
Paterfamilias  by  the  son  or  slave  under  his  power. 
The  representation  of  the  Principal  by  the  Agent  is 
much  more  incomplete,  and  it  seems  to  me  probable 
that  we  have  in  it  a  shadow  of  that  thorough  co- 
alescence between  two  individuals  which  was  only 
possible  anciently  when  they  belonged  to  the  same 
family. 

The  institutions  which  I  have  taken  as  my 
examples  are  institutions  of  indigenous  growth,  deve- 
loped probably  more  or  less  within  all  ancient  societies 
by  the  expansion  of  the  notion  of  kinship.  But  it 
sometimes  happens  that  a  wholly  foreign  institution 
is  introduced  from  without  into  a  society  based  upon 
assumed  consanguinity,  and  then  it  is  most  instruc- 
tive to  observe  how  closely,  in  such  a  case,  material 
which  antecedently  we  should  think  likely  to  oppose 
the  most  stubborn  resistance  to  the  infiltration  of 
tribal  ideas  assimilates  itself  nevertheless  to  the  model 
of  a  Family  or  Tribe.  You  may  be  aware  that  the 
ancient  Irish  Church  has  long  been  a  puzzle  to  eccle- 
siastical historians.  There  are  difficulties  suggested 
by  it  on  which  I  do  not  pretend  to  throw  any  new 
light,  nor,  indeed,  could  they  conveniently  be  con- 
sidered here.  Among  perplexities  of  this  class  are 
the  extraordinary  multiplication  of  bishops  and  their 
dependence,  apparently  an  almost  servile  dependence, 
on  the  religious  houses  to  which  they  were  attached. 


236  THE   ANCIENT   IKISH  CHURCH.  user.  nil. 

But  the  relation  of  the  various  ecclesiastical  bodies  to 
one  another  was  undoubtedly  of  the  nature  of  tribal 
relation.  The  Brehon  law  seems  to  me  fully  to  con- 
firm the  account  of  the  matter  given,  from  the  purely 
ecclesiastical  literature,  by  Dr.  Todd,  in  the  Intro- 
duction to  his  Life  of  St.  Patrick.  One  of  the  great 
Irish  or  Scotic  Missionaries,  who  afterwards  nearly 
invariably  reappears  as  a  Saint,  obtains  a  grant  of 
lands  from  some  chieftain  or  tribe  in  Ireland  or  Celtic 
Britain,  and  founds  a  monastery  there,  or  it  may  be 
that  the  founder  of  the  religious  house  is  already 
himself  the  chieftain  of  a  tribe.  The  House  becomes 
the  parent  of  others,  which  again  may  in  their  turn 
throw  out  minor  religious  establishments,  at  once 
monastic  and  missionary.  The  words  signifying 
1  family '  or  '  tribe  '  and  '  kinship  '  are  applied  to  all 
the  religious  bodies  created  by  this  process.  Each 
monastic  house,  with  its  monks  and  bishops,  consti- 
tutes a  'family'  or  4 tribe  ;'  and  its  secular  or  servile 
dependants  appear  to  be  sometimes  included  under 
the  name.  The  same  appellation  is  given  to  the  col- 
lective assemblage  of  religious  houses  formed  by  the 
parent  monastery  and  the  various  churches  or  mon- 
astic bodies  sprung  from  it.  These  make  up  together 
the  'tribe  of  the  saint,'  but  this  last  expression  is 
not  exclusively  employed  with  this  particular  mean- 
ing. The  abbot  of  the  parent  house  and  all  the 
abbots  of  the  minor  houses  are  the  '  comharbas '  or 


LECT.  vin.  GROUPS   OP  RELIGIOUS   HOUSES.  237 

co-heirs  of  the  saint,  and  in  yet  another  sense  the 
'  family '  or  '  tribe '  of  the  saint  means  his  actual 
tribesmen  or  blood-relatives.  lona,  or  Hy,  was,  as 
you  know,  the  famous  religious  house  founded  by  St. 
Colurnba  near  the  coast  of  the  newer  Scotia.  '  The 
Abbot  of  Hy,'  says  Dr.  Todd,  'or  Co-arb  of  Columba, 
was  the  common  head  of  Durrow,  Kells,  Swords, 
Drumcliff,  and  other  houses  in  Ireland  founded  by 
Columba,  as  well  as  of  the  parent  monastery  of  Hy, 
and  the  "  family  of  Colum-kille  "  was  composed  of 
the  congregations  or  inmates  and  dependants  of  all 
those  monasteries.  The  families,  therefore,  of  such 
monasteries  as  Clonmacnois  or  Durrow  might  muster 
a  very  respectable  body  of  fighting  men.'  Let  me 
add,  that  there  is  very  good  evidence  that  these 
1  families  of  the  saints '  were  occasionally  engaged  in 
sanguinary  little  wars.  But,  'in  general'  (I  now 
quote  again  from  Dr.  Todd),  'the  "family"  meant 
only  the  monks  or  religious  of  the  house.' 

It  will  be  obvious  to  you  that  this  application  of 
the  same  name  to  all  these  complicated  sets  of  rela- 
tions is  every  now  and  then  extremely  perplexing, 
but  the  key  to  the  difficulty  is  the  conception  of  the 
kindred  branching  off  in  successive  generations  from 
the  common  stock,  planting  themselves  occasionally 
at  a  distance,  but  never  altogether  breaking  the  bond 
which  connected  them  with  their  original  family  and 
chief.  Nothing,  let  me  observe,  can  be  more  curious 


238  THE   FAMILY   OF   THE   SAINT.  IEOT.  VTIT. 

than  the  way  in  which,  throughout  these  artificial 
structures,  the  original  natural  principle  upon  which 
they  were  modelled  struggles  to  assert  itself  at  the 
expense  of  the  imitative  system.  In  all  the  more 
modern  guilds,  membership  always  tended  to  become 
hereditary,  and  here  we  have  the  Brehon  law  striving 
to  secure  a  preference,  in  elections  to  the  Abbacy,  to 
the  actual  blood-relatives  of  the  sainted  founder. 
The  ecclesiastical  rule,  we  know,  required  election  by 
the  monks,  but  the  Corus  Bescna  declares  that,  on 
a  vacancy,  the  '  family  of  the  saint '  (which  here 
means  the  founder's  sept),  if  there  be  a  qualified 
monk  among  them,  ought  to  be  preferred  in  elections 
to  the  Abbacy — { though  there  be  but  a  psalm- singer 
of  them,  if  he  be  fit,  he  shall  have  it.'  And  it  pro- 
ceeds to  say  that,  if  no  relative  or  tribesman  of  the 
saint  be  qualified,  the  Abbacy  shall  go  to  some  mem- 
ber of  the  tribe  which  originally  granted  the  land. 

A  very  modern  example  of  this  plasticity  of  the 
notion  of  kinship  has  recently  been  brought  to  my 
notice.  The  co-villagers  of  an  Indian  village  call 
themselves  brothers,  although,  as  I  have  frequently 
observed,  the  composition  of  the  community  is  often 
artificial  and  its  origin  very  miscellaneous.  The 
appellation,  at  the  same  time,  is  distinctly  more  than 
a  mere  word.  Now,  some  of  the  Christian  mission- 
aries have  recently  tried  an  experiment  which  pro- 
mises to  have  much  success,  and  have  planted  in  vil- 


IJJCT.  Tin.  SPIRITUAL   RELATIONSHIP.  2SO 

lages  converts  collected  from  all  sorts  of  different 
regions.  Yet  these  persons,  as  I  am  informed,  fall 
into  a  'brotherhood'  quite  as  easily  and  talk  the 
language  and  assume  the  habits  appropriate  to  it 
quite  as  naturally  as  if  they  and  their  forefathers  had 
been  members  from  time  immemorial  of  this  pecu- 
liarly Indian  association,  the  village-community. 

There  is,  however,  another  set  of  phenomena 
which  belong  to  the  same  class,  but  which  seem  to 
me  to  have  been  much  misunderstood.  When  men, 
under  the  influence  of  the  cast  of  thought  we  are  dis- 
cussing, are  placed  in  circumstances  which  naturally 
breed  affection  and  sympathy,  or  when  they  are  placed 
in  a  relation  which  they  are  taught  to  consider  espe- 
cially sacred,  not  only  their  words  and  ideas  but  their 
feelings,  emotions,  and  prejudices  mould  themselves 
on  the  pattern  of  those  which  naturally  result  from 
consanguinity.  We  have,  I  believe,  a  striking  ex 
ample  of  the  process  in  the  history  of  the  Christian 
Church.  You  know,  I  dare  say,  that  Spiritual  Rela- 
tionship or  the  tie  between  a  sponsor  and  a  baptized 
person,  or  between  sponsors,  or  even  between  the 
sponsors  and  the  family  of  the  baptized,  became  by 
degrees  the  source  of  a  great  number  of  prohibitions 
against  intermarriage,  which  stood  on  the  same  level 
with  those  based  on  affinity,  and  almost  with  those 
founded  on  consanguinity.  The  earliest  evidence  we 
have  that  this  order  of  ideas  was  stirring  the  Chris- 


240  SPIRITUAL  RELATIONSHIP.  user.  vm. 

tian  community  is,  I  believe,  a  Constitution  of  Jus- 
tinian in  the  Code  (v.  4.  26),  which  forbids  the 
marriage  of  the  sponsor  with  the  baptized ;  but  the 
prohibitions  were  rapidly  extended  by  the  various 
authorities  which  contributed  to  the  Canon  law,  and 
were  finally  regulated  and  somewhat  narrowed  by 
the  Council  of  Trent.  Nowadays,  I  am  told  that 
they  merely  survive  formally  in  the  Roman  Catholic 
Church,  and  that  dispensations  relaxing  them  are 
obtainable  as  of  course.  The  explanation  of  the 
system  by  technical  theologians  is  that  it  is  based  on 
the  wish  to  give  a  peculiar  sacredness  to  the  bond 
created  by  sponsorship,  and  this  I  believe  to  be  a  true 
account  of  its  origin.  But  I  do  not  believe  that 
Spiritual  Relationship,  a  structure  based  on  contract, 
would  in  every  stage  of  thought  have  assimilated 
itself  to  natural  relationship.  The  system  developed 
itself  just  when  Christianity  was  being  diffused  among 
races  whose  social  organisation  was  founded  on  kin- 
ship, and  I  cannot  but  think  that  their  ideas  reacted 
on  the  Church.  With  such  races  a  very  sacred  tie 
was  necessarily  of  the  nature  of  a  family  tie,  and 
carried  with  it  the  same  associations  and  the  same 
order  of  feeling.  I  do  not,  therefore,  consider  that 
such  terms  as  Gossipred,  Godfather,  Godson — to  which 
there  are  counterparts  in  several  languages — were 
created  by  the  theory  of  Spiritual  Relationship,  but 


LF.CT.  vir  FOSTERAGE.  341 

rather  that   they  mark  the  process  by  which  that 
theory  was  formed. 

It  seems  to  me  accordingly  in  the  highest  degree 
natural  that  Spiritual  Relationship,  when  introduced 
into  a  tribal  society  like  that  of  the  ancient  Irish, 
should  closely  assimilate  itself  to  blood-relationship. 
We  know  in  fact  that  it  did  so,  and  that  the  strin- 
gency of  the  relation  and  the  warmth  of  the  affections 
which  it  produced  moved  the  scorn,  the  wrath,  and 
the  astonishment  of  several  generations  of  English 
observers,  deriving  their  ideas  from  a  social  order  now 
become  very  unlike  that  of  Ireland.  But  by  the  side 
of  Gossipred,  or  Spiritual  Relationship,  there  stood 
another  much  more  primitive  institution,  which  was 
extraordinarily  developed  among  the  ancient  Irish, 
though  not  at  all  peculiar  to  them.  This  was  Foster- 
age, the  giving  and  taking  of  children  for  nurture. 
Of  the  reasons  why  this  practice,  now  known  to 
have  been  widely  diffused  among  Aryan  communi- 
ties, should  have  had  an  exceptional  importance  and 
popularity  in  Ireland,  we  can  say  little  more  than 
that  they  probably  belong  to  the  accidents  of  Irish 
history  and  of  Irish  social  life.  But  of  the  fact  there 
is  no  doubt.  An  entire  sub-tract  in  the  Senchus  Mor 
is  devoted  to  the  Law  of  Fosterage,  and  sets  out  with 
the  greatest  minuteness  the  rights  and  duties  attach- 
ing to  all  parties  when  the  children  of  another  family 
were  received  for  nurture  and  education.  It  is 

R 


242  LITERACY    FOSTERAGE.  I.KCT.  Tin. 

classed,  with  Gossipred,  as  one  of  the  anomalies  or 
curses  of  Ireland  by  all  her  English  critics,  from 
Giraldus  Carnbrensis  in  the  twelfth  century  to 
Spenser  in  the  sixteenth.  It  seemed  to  them  mon- 
strous that  the  same  mother's  milk  should  produce 
in  Ireland  the  same  close  affections  as  did  common  pa- 
ternity in  their  own  country.  The  true  explanation 
was  one  which  is  only  now  dawning  on  us.  It  was, 
that  Fosterage  was  an  institution  which,  though  arti- 
ficial in  its  commencements,  was  natural  in  its  opera- 
tions; and  that  the  relation  of  foster-parent  and 
foster-child  tended,  in  that  stage  of  feeling,  to  become 
indistinguishable  from  the  relation  of  father  and  son. 
The  form  of  Fosterage  which  has  most  interest 
for  the  modern  enquirer  is  called  by  the  Translators 
of  the  Brehon  tracts  Literary  Fosterage.  It  was  tin 
institution  nearly  connected  with  the  existence  of  the 
Brehon  Law  Schools,  and  it  consists  of  the  various 
relations  established  between  the  Brehon  teacher  and 
the  pupils  he  received  into  his  house  for  instruction 
in  the  Brehon  lore.  However  it  may  surprise  us 
that  the  connection  between  Schoolmaster  and  Pupil 
was  regarded  as  peculiarly  sacred  by  the  ancient  Irish, 
and  as  closely  resembling  natural  fatherhood,  the  Bre- 
hon tracts  leave  no  room  for  doubt  on  the  point.  It  is 
expressly  laid  down  that  it  created  the  same  Patria 
Potestas  as  actual  paternity;  and  the  literary  foster- 
father,  though  he  teaches  gratuitously,  has  a  claim 


LECT.  vm.        LITERARY  FOSTERAGE   Iff   INDIA.  243 

through  life  upon  portions  of  the  property  of  the 
literary  foster-son.  Thus  the  Brehon  with  his  pupils 
constituted  not  a  school  in  our  sense  but  a  true 
family.  "While  the  ordinary  foster-father  was  bound 
by  the  law  to  give  education  of  some  kind  to  his 
foster-children  —  to  the  sons  of  chiefs  instruction 
in  riding,  shooting  with  the  bow,  swimming,  and 
chess-playing,  and  instruction  to  their  daughters  in 
sewing,  cutting  out,  and  embroidery — the  Brehon 
trained  his  foster-sons  in  learning  of  the  highest  dig- 
nity, the  lore  of  the  chief  literary  profession.  He  took 
payment,  but  it  was  the  law  which  settled  it  for  him. 
It  was  part  of  his  status,  and  not  the  result  of  a 
bargain. 

There  are  some  faint  traces  of  Fosterage  in  the 
Hindoo  law,  but  substantially  it  has  dropped  out  of 
the  system.  The  vestiges  of  Literary  Fosterage  are, 
however,  tolerably  abundant  and  very  plain.  Accord- 
ing to  the  general  custom  of  India,  the  Brahmin 
teacher  of  Brahmin  pupils  receives  no  payment  for  his 
services,  but  the  Hindoo  law  repeatedly  reserves  to 
him  a  remote  succession  to  their  property.  In  each 
of  four  Brahminical  law-tracts  of  great  authority,  the 
Vyavahara  Mayukha,  the  Daya-Bhaga,  the  Mitak- 
shara,  and  the  Daya-Krama-Sangraha,  the  same 
ancient  text  is  quoted  (sometimes  but  not  always 
attributed  to  Manu),  which  is  to  the  effect  that  *  If 
there  be  no  male  issue  the  nearest  kinsman  inherits  j 

B2 


244  ORIGIN  OF  CASTE.  LBCT.  vm. 

or  iri  default  of  kindred,  the  preceptor,  or  failing  him 
the  disciple.'  One  commentator  explains  that  the 
preceptor  is  the  instructor  in  the  Vedas,  and  another 
describes  him  as  the  person  who  affords  religious 
instruction  to  his  pupil  after  investing  him  with 
the  Brahminical  thread.  These  writers  add  that  if 
neither  teacher  nor  pupil  have  survived  the  deceased 
his  fellow- student  will  succeed.  Modern  cases  turn- 
ing on  these  peculiar  rules  of  succession  may  be 
found  in  the  Anglo-Indian  Law  Reports. 

We  are  thus  brought  face  to  face  with  a  problem 
which  possesses  interest  in  proportion  to  its  difficulty 
— the  problem  of  the  origin  of  Castes.  I  cannot 
profess  to  do  more  than  approach  it,  but  the  oppor- 
tunity of  throwing  even  the  least  light  on  a  subject 
so  dark  ought  not  to  be  neglected.  First  let  me  say 
that,  among  the  comparatively  few  English  writers 
who  have  noticed  the  Brehon  lawyers,  some  have 
loosely  described  them  as  a  caste.  But  this  is  an  im- 
proper use  of  the  word,  though  it  is  one  not  uncom- 
mon in  India.  As  regards  the  position  of  the  Brehons 
in  very  early  times,  the  evidence  of  the  Irish  re- 
cords is  consistent  with  the  testimony  of  Caesar  as 
to  the  literary  class  of  the  Gallic  Celts,  and  seems 
to  show  that  anyone  who  went  through  a  particular 
training  might  become  a  Brehon.  When,  however, 
Ireland  began  to  be  examined  by  English  observers, 
it  is  plain  that  the  art  and  knowledge  of  the  Brehon 


LECT.  vin.  TRADES    CALLED    CASTES.  245 

had  become  hereditary  in  certain  families  who  were 
attached  to  or  dependent  on  the  Chiefs  of  particular 
tribes.  There  is  nothing  remarkable  in  this  change, 
which  has  obviously  occurred  with  a  vast  number  of 
trades  and  professions  in  India,  now  popularly  called 
castes.  In  societies  of  an  archaic  type,  a  particular 
craft  or  kind  of  knowledge  becomes  in  time  an  heredi- 
tary profession  of  families,  almost  as  a  matter  of  course. 
The  difficulty  with  a  native  of  India,  unsophisticated 
by  English  ideas,  is  not  to  find  a  reason  why  a  son 
should  succeed  to  the  learning  of  his  father,  and 
consequently  to  his  office  and  duties;  his  difficulty 
would  rather  be  to  explain  to  himself  why  it  should 
not  be  so,  and  how  the  public  interests  could  be  con- 
sulted by  any  other  arrangement.  The  States  governed 
by  native  Indian  Princes  are  becoming  a  good  deal 
Anglicised,  but  still  in  them  it  is  the  practically  uni-  f 
versal  rule  that  office  is  hereditary.  We  do  not,  how-  >' 
ever,  thus  arrive  at  a  complete  account  of  the  growth 
of  those  castes  which  are  definite  sections  of  great 
populations  One  only  of  these  castes  really  survives 
in  India,  that  of  the  Brahmins,  and  it  is  strongly  sus- 
pected that  the  whole  literary  theory  of  Caste,  which  is 
of  Brahmin  origin,  is  based  on  the  existence  of  the 
Brahmin  caste  alone.  Now,  the  tendency  of  knowledge 
to  become  hereditary  is,  by  itself,  consistent  with  a 
great  variety  of  religious  and  literary  cultivation; 
but,  as  a  fact,  the  Brahmins  of  India  are  a  remarkably 


246  OEIGIN   OF   TRUE   CASTE.  LJGCI.  vin. 

homogeneous  class,  admitting  (though  no  doubt  with 
considerable  local  qualifications)  a  general  brotherhood 
of  all  members  of  the  order. 

While,  then,  I  cannot  say  that  our  scanty  in- 
formation respecting  changes  in  the  status  of  the  Bre- 
hon  lawyers  helps  us  much  towards  a  comprehension 
of  the  beginnings  of  Caste  in  the  true  sense,  I  certainly 
think  that  we  leam  something  more  than  we  knew 
before  from  the  references  in  the  Brehon  tracts  to 
Literary  Fosterage.  They  appear  to  me  to  give  a 
new  emphasis  and  point  to  the  rules  of  Hindoo  Law 
respecting  the  remote  succession  of  the  '  spiritual 
preceptor '  to  the  property  of  families.  It  seems  as 
if  in  the  most  ancient  state  of  both  systems  Literary 
or  Religious  fatherhood  had  been  closely  assimilated 
to  actual  fatherhood.  Under  these  circumstances,  if 
great  schools  of  Vedaic  learning  existed  in  India  in 
very  ancient  times,  as  we  have  strong  reason  to  think 
they  did,  the  relation  between  Teacher  and  Pupil 
would  closely  follow  and  imitate  the  relation  between 
father  and  son.  A  great  profession  would  thus  be 
formed,  with  stores  of  common  knowledge ;  but  the 
tie  between  the  members  would  not  be  purely  in- 
tellectual ;  it  would  from  the  first  be  conceived  as  of 
the  nature  of  kinship.  Such  a  system,  as  the  old 
ideas  decayed,  would  tend  infallibly  to  become  one  of 
real  consanguinity.  The  aptitude  for  sacred  know- 
ledge would  come  to  be  thought  to  run  in  the  blood 


vm.         NORMANS   SETTLED   IN  IRELAND.  247 

of  sons  whose  fathers  had  been  instructed  in  it,  and 
none  but  such  sons  would  be  received  into  the  schools. 
A  Caste  would  thus  be  formed,  in  the  eyes  of  its 
members  the  type  of  all  Castes. 

We  have  thus  strong  reason  for  thinking  that  so- 
cieties still  under  the  influence  of  primitive  thought 
labour  under  a  certain  incapacity  for  regarding  men, 
grouped  together  by  virtue  of  any  institutions  what- 
soever, as  connected  otherwise  than  through  blood- 
relationship.  We  find  that,  through  this  barrenness  of 
conception,  they  are  apt  to  extend  the  notion  of  con- 
sanguinity and  the  language  beginning  in  it  to  insti- 
tutions of  their  own  not  really  founded  on  community 
of  blood,  and  even  to  institutions  of  foreign  origin. 
We  find  also  that  the  association  between  institutions 
arising  from  true  kinship  and  institutions  based  on 
artificial  kinship  is  sometimes  so  strong,  that  the 
emotions  which  they  respectively  call  forth  are  prac- 
tically indistinguishable.  These  phenomena  of  early 
thought  and  feeling  appear  to  me  amply  to  account 
for  some  facts  of  Irish  history  which  nearly  all  Eng- 
lish writers  on  Ireland  have  noticed  with  extreme 
surprise  or  indignation.  The  expressions  of  Sir  John 
Davis,  while  stating  that  many  of  the  early  Anglo- 
Norman  adventurers  settled  in  Ireland  became  in 
time  pure  Irish  chieftains,  reflect  the  violent  astonish- 
ment and  anger  which  the  transformation  excited  in 
Englishmen.  '  The  English  Colonists  did  embrace 


248  IXVECTIVE   OF  DAVIS.  LEG'S:,  vra, 

and  use  the  Irish  customs,  after  they  had  rejected  the 
Civil  and  Honourable  Laws  and  Customs  of  England, 
whereby  they  became  degenerate  and  metamorphosed 
like  Nebuchadnezzar,  who,  although  he  had  the  face 
of  a  man,  had  the  heart  of  a  beast ;  or  like  those  who 
had  drunk  of  Circe's  cup  and  were,  turned  into  very 
beasts,  and  yet  took  such  pleasure  in  their  beastly 
manner  of  life  as  they  would  not  return  to  their 
shape  of  men  again  ;  insomuch  as  within  less  time 
than  the  age  of  a  man,  they  had  no  marks  or  differ- 
ence left  among  them  of  that  noble  nation  from  which 
they  were  descended.'  The  fact,  stated  in  this  bitter 
language,  is  not  especially  marvellous.  We  have 
seen  the  general  complexion  of  Irish  society  giving 
its  colour  to  institutions  of  all  sorts — associations  of 
kinsmen  shading  off  into  assemblages  of  partners  and 
guild-brothers — foster  parentage,  spiritual  parentage, 
and  preceptorship  taking  their  hue  from,  natural  pater- 
nity— ecclesiastical  organisation  blending  with  tribal 
organisation.  The  Anglo-Norman  captain  who  had 
thought  to  conquer  for  himself  an  Irish  signory  passed 
insensibly  in  the  same  way  into  the  chieftain  of  an 
Irish  tribe.  The  dependants  who  surrounded  him 
did  not  possibly  draw  any  clear  distinction  between 
the  actual  depositary  of  power  and  the  natural  deposi- 
tary of  power,  and,  as  the  contagiousness  of  ideas  is 
in  proportion  to  their  fewness,  it  is  intelligible  that 
he  too  was  affected  by  the  mental  atmosphere  in 


LECT.  vra.  ANGLO-XORMANS   IN   IBELAND.  949 

which  he  lived.  Nor  were  other  motives  wanting. 
The  extreme  poverty  and  constant  distractions  of 
Ireland  did  not  prevent  an  extraordinary  amount  of 
the  pride  of  authority,  of  the  pride  of  birth  and 
even  of  the  pride  of  wealth  from  centring  in  tliP 
dignity  of  an  Irish  Chief. 


250  THE  MANUSCRIPT   OF   GAIUS.  LECT.  ii 


LECTURE  IX. 

THE    PRIMITIVE   FORMS   OF   LEGAL   REMEDIES. 
I. 

I  STATED  on  a  former  occasion  (Lecture  I.  p.  8)  that 
the  branch  of  law  which  we  now  call  the  Law  of 
Distress  occupies  the  greatest  part  of  the  largest 
Brehon  law-tract,  the  Senchus  Mor.  The  importance 
thus  given  to  Distress  is  a  fact  of  much  significance, 
and  in  this  and  the  following  Lecture  I  propose  to 
discuss  the  questions  it  raises  and  the  conclusions  it 
suggests. 

The  value  of  the  precious  discovery  made  by 
Niebuhr,  when  he  disinterred  in  1816  the  manuscript 
of  Gaius,  does  not  solely  arise  from  the  new  light 
which  was  at  once  thrown  on  the  beginnings  of  the 
legal  system  which  is  the  fountain  of  the  greatest 
part  of  civilised  jurisprudence.  There  are  portions 
of  the  treatise  then  restored  to  the  world  which 
afford  us  glimpses  of  something  older  than  law  it- 
self, and  which  enable  us  to  connect  with  law  the 
practices  dictated  to  barbarous  men  by  impulses 
ivhich  it  has  become  the  prime  office  of  all  law  to 


LP.CT.  IX.  LEX   AND    LEG  IS   ACTIO.  251 

control.  At  the  head  of  the  passages  in  the  work 
of  Gaius  which  allow  the  mind's  eye  to  penetrate 
some  little  way  into  the  chaos  out  of  which  social 
order  sprang,  I  place  the  fragmentary  and  imper- 
fect account,  given  near  the  commencement  of  the 
Fourth  Book,  of  the  old  Legis  Actiones,  which  in  the 
age  of  Gaius  himself  had  ceased  to  have  more  than 
an  historical  and  antiquarian  interest. 

Legis  Actio,  of  which  the  exact  meaning  does  not 
seem  to  have  been  known  to  Gaius,  may  be  conjec- 
tured to  have  been  the  substantive  form  of  the  verbal 
expression,  legem  or  lege  agere,  and  to  have  been  equi- 
valent to  what  we  now  call  Procedure.  It  has  been 
several  times  observed  that  among  the  Legis  Actiones 
are  included  several  proceedings  which  are  not  of  the 
nature  of  Actions  or  Suits,  but  are  rather  modes  of 
executing  decrees.  The  fact  seems  to  be  that,  by  a 
course  of  change  which  may  be  traced  in  the  history 
of  Roman  law,  one  portion,  '  Actio,'  of  the  venerable 
phrase  '  Legis  Actio '  has  been  gradually  disjoined 
from  the  rest,  and  has  come  to  denote  that  stage  of 
the  administration  of  justice  which  is  directly  con- 
ducted by  the  Court,  together,  in  some  judicial  sys- 
tems, with  the  stage  immediately  preceding  it.  I 
suppose  that  originally  lea:,  used  of  the  assumed  writ- 
ten basis  of  Roman  law,  and  legis  actio,  corresponded 
roughly  to  what  many  centuries  afterwards  were 
called  Substantive  and  Adjective  Law,  the  law  de- 


252  THE   LEG  IS   ACTIO   SACRAJ1EXTI.  LECT.  ix. 

claring  rights  and  duties  and  the  rules  according  to 
which  the  law  declaring  rights  and  duties  is  adminis- 
tered. On  the  expression  just  mentioned,  Adjective 
Law,  with  which  Bentham  and  his  school  have  fami- 
liarised us,  I  will  make  a  remark  which  applies  to 
much  in  the  phraseology  and  classifications  of  the 
Analytical  Jurists,  that  it  is  correct  and  convenient 
according  to  the  ideas  of  their  day,  but  that,  if  used 
of  very  old  law,  it  is  apt  to  lead  to  an  historical  mis- 
conception. It  would  not  be  untrue  to  assert  that, 
in  one  stage  of  human  affairs,  rights  and  duties  are 
rather  the  adjective  of  procedure  than  procedure  a 
mere  appendage  to  rights  and  duties.  There  have 
been  times  when  the  real  difficulty  lay,  not  in  conceiv- 
ing what  a  man  was  entitled  to,  but  in  obtaining  it ; 
so  that  the  method,  violent  or  legal,  by  which  an  end 
was  obtained  was  of  more  consequence  than  the 
nature  of  the  end  itself.  As  a  fact,  it  is  only  in  the 
most  recent  times  or  in  the  most  highly  developed 
legal  systems  that  remedies  have  lost  importance  in 
comparison  with  rights  and  have  ceased  to  affect 
them  deeply  and  variously. 

The  first  and  in  many  respects  the  most  interest- 
ing of  these  ancient  modes  of  proceeding  is  the  Legis 
Actio  Sacramenti,  the  undoubted  parent  of  all  the 
Roman  Actions,  and  consequently  of  most  of  the 
civil  remedies  now  in  use  in  the  world.  Several 
years  ago  I  pointed  out  (Ancient  Law,  pp.  376,  377) 


user,  n.  ANCIENT   DRAMATISATIONS.  2fi3 

that  the  technical  formalities  appeared  plainly,  upon 
inspection,  to  be  a  dramatisation  of  the  Origin  of 
Justice.     '  Two  armed  men,'  I  said,  '  are  wrangling 
about   some   disputed    property.     The    PraBtor,    vir 
pictate  gravis,  happens  to   be  going  by   and   inter- 
poses to  stop  the  contest.     The  disputants  state  their 
case  to  him,  and  agree  that  he  shall  arbitrate  between 
them,  it  being  arranged  that  the  loser,  besides  re- 
signing the  subject  of  the  quarrel,  shall  pay  a  sum  of 
money  to  the  umpire  as  remuneration  for  his  trouble 
and  loss  of  time.'  '  This  interpretation,'  I  then  added, 
'  would  be  less  plausible  than  it  is,  were  it  not  that, 
by  a  surprising  coincidence,  the  ceremony  described 
by  Gaius  as  the  imperative  course  of  proceeding  in 
a  Legis  Actio  is  substantially  the  same  with  one  of  the 
two  subjects  which  the  God  Hephaestus  is  described 
by  Homer  as  moulding  into  the  First  Compartment 
of  the  Shield  of  Achilles.'     Since  these  passages  were 
written,  the  labours  of  more  recent  enquirers  enable 
us  to  class  this  judicial  picture  of  the  origin  of  one 
great  institution,  Civil  Justice,  with  other  pictorial  or 
dramatic  representations  of  forgotten  practices  which, 
in  various  parts  of  the  world,  survive  in  the  forms  at- 
tending institutions  of  at  least  equal  importance.     It 
may  be  seen,  for  example,  from  Mr.  McLennan's  work 
on  *  Primitive  Marriage,'  that  a  large  part  of  mankind 
still  simulate  in  their  marriage  ceremonies  the  carrying 
off  the  bride  by  violence,  and  thus  preserve  the  memory 


254  SACRAMENTAL   ACTIOX.  LUCT.  II, 

of  the  reign  of  force  which,  at  all  events  as  between 
tribe  and  tribe,  preceded  everywhere  the  reign  of 
law.  It  is  not  at  the  same  time  to  be  supposed  that 
these  long- descended  dramas  imply  or  ever  implied 
any  disrespect  for  the  ir  stitutions  with  which  they 
are  associated.  In  all  probability  they  intentionally 
commemorate  not  the  evil  but  the  remedy  for  the 
evil :  and,  until  they  degenerate  into  meaningless 
usages,  they  are  enacted,  not  in  honour  of  brute  force, 
but  in  honour  of  the  institutions  which  superseded  it, 
Marriage  and  Civil  Justice. 

Almost  every  gesture  and  almost  every  set  of 
formal  words  in  the  Legis  Actio  Sacramenti  sym- 
bolise something  which,  in  some  part  of  the  world 
or  another,  in  some  Aryan  society  or  another,  has 
developed  into  an  important  institution.  The 
claimant  places  his  hand  on  the  slave  or  other 
subject  of  dispute,  and  this  grasp  of  the  thing 
claimed,  which  is  reproduced  in  the  corresponding 
procedure  of  the  ancient  Germans  and  which,  from 
them,  was  continued  in  various  modified  forms  far 
down  into  the  Middle  Ages,  is  an  early  example 
of  that  Demand  before  action  on  which  all  civi- 
lised systems  of  law  insist.  The  wand,  which  the 
claimant  held  in  hie;  hand,  is  stated  by  Gaius  to 
have  represented  a  spear,  and  the  spear,  the  emblem 
of  the  strong  man  armed,  served  as  the  symbol  of 
property  held  absolutely  and  against  the  world,  not 


LBCT.  IX.  SACRAMENTAL   ACTION.  266 

onlv  in  the  Roman  but  in  several   other   Western 

•/ 

societies.  The  proceedings  included  a  series  of  as- 
sertions and  reassertions  of  right  by  the  parties,  and 
this  formal  dialogue  was  the  parent  of  the  Art  of 
Pleading.  The  quarrel  between  plaintiff  and  defend- 
ant, which  was  a  mere  pretence  among  the  Romans, 
long  remained  a  reality  in  other  societies,  and,  though 
its  theory  was  altered,  it  survived  in  the  Wager  of 
Battle  which,  as  an  English  institution,  was  only 
finally  abolished  in  our  fathers'  day.  The  interposi- 
tion of  the  Prastor  and  the  acceptance  of  his  media- 
tion expanded  into  the  Administration  of  Justice  in 
the  Roman  State,  one  of  the  most  powerful  of  instru- 
mentalities in  the  historical  transformation  of  the 
civilised  world.  The  disputants  staked  a  sum  of 
money — the  Sacramentum,  from  which  the  proceed- 
ings took  their  name — on  the  merits  of  their  quarrel, 
and  the  stake  went  into  the  public  exchequer.  The 
money  thus  wagered,  which  appears  in  a  singularly 
large  number  of  archaic  legal  systems,  is  the  earliest 
representative  of  those  Court-fees  which  have  been  a 
more  considerable  power  in  legal  history  than  histo- 
rians of  law  are  altogether  inclined  to  admit.  The 
very  spirit  in  which  a  Legis  Actio  was  conducted  was 
that  which,  in  the  eyes  of  laymen,  has  been  most  cha- 
racteristic of  lawyers  in  all  historical  times.  If,  says 
Gaius,  you  sued  by  Legis  Actio  for  injury  to  your 
vines,  and  called  tl.em  vines,  you  would  fail ;  you 


256  THE   COXDICTION.  LECT.  ix 

must  call  them  trees,  because  the  text  of  the  Twelve 
Tables  spoke  only  of  trees.  The  ancient  collection 
of  Teutonic  legal  formulas,  known  as  the  Malberg 
Gloss,  contains  provisions  of  precisely  the  same  cha- 
racter. Tf  you  sue  for  a  bull,  you  will  miscarry  if 
you  describe  him  as  a  bull ;  you  must  give  him  his 
ancient  juridical  designation  of  '  leader  of  the  herd.* 
You  must  call  the  forefinger  the  '  arrow  '-finger,  the 
goat  the  '  browser  upon  leeks.'  There  are  lawyers 
alive  who  can  recollect  when  the  English  system  of 
Special  Pleading,  now  just  expiring,  was  applied  upon 
principles  not  remotely  akin  to  these  and  historically 
descended  from  them. 

The  description  given  by  Gaius  of  the  Legis  Actio 
Sacramenti  is  followed  by  a  lacuna  in  the  manuscript. 
It  was  once  occupied  with  an  account  of  the  Judicis 
Postulatio,  which  was  evidently  a  modification  of 
the  older  Sacramental  Action  by  which  this  ancient 
remedy  was  adapted  to  a  particular  class  of  cases. 
The  text  of  the  treatise  begins  again  with  a  descrip- 
tion of  the  Condictio,  which  is  said  by  Gaius  to  have 
been  created,  but  which  is  believed  to  have  been  only 
regulated,  by  two  Roman  statutes  of  the  sixth  century 
before  Christ — the  Lex  Silia  and  the  Lex  Calpurnia. 
The  Condictio,  which  afterwards  developed  into  one 
of  the  most  useful  of  the  Roman  actions,  originally 
derived  its  name  from  a  notice  which  the  plaintiff 
gave  the  defendant  to  appear  before  the  Pnetor  in 


LECT.  EC.  THE   PIGNOEIS   CAPIO.  257 

thirty  days,  in  order  that  a  Judex  or  referee  might  be 
nominated;  and  immediately  (as  I  myself  think)  on 
this  notice  being  given,  the  parties  entered  into  a 
1  sponsio '  and  '  restipulatio,'  that  is,  they  laid  a  formal 
wager  (distinct  from  the  stake  called  Sacramentum) 
on  the  justice  of  their  respective  contentions.  The 
sum  thus  staked,  which  was  always  equal  to  a  third 
of  the  amount  in  dispute,  went  in  the  end  to  the 
successful  litigant,  and  not,  like  the  Sacramentum,  to 
the  State.  Lawyers  wondered,  Gaius  tells  us,  that 
*uch  an  action  should  be  needed  when  property  could 
have  been  recovered  by  the  older  and  unmodified 
procedure.  Many  technical  answers  to  this  question 
have  been  given  by  modern  commentators  on  Roman 
law,  but  we  will  see  whether  a  better  explanation  of  it 
cannot  be  obtained  by  approaching  it  from  another  side. 
Gaius,  leaving  the  Condictio,  proceeds  to  discuss 
two  of  the  Legis  Actiones,  the  Manus  Injectio  and 
the  Pignoris  Capio,  which  cannot  be  made  to  square 
in  any  way  with  our  modern  conception  of  an  action. 
The  Manus  Injectio  is  expressly  stated  to  have  been 
originally  the  Roman  mode  of  execution  against  the 
person  of  a  judgment  debtor.  It  has  considerable 
historical  interest,  for  it  was  undoubtedly  the  instru- 
ment of  the  cruelties  practised  by  the  Roman  aris- 
tocracy on  their  defaulting  plebeian  debtors,  and  thus 
it  gave  the  first  impetus  to  a  series  of  popular  move- 
ments which  affected  the  whole  history  of  the  Roman 

s 


258  THE   PIGNORIS    CAPIO.  xacr.  ix. 

Commonwealth  The  Pignoris  Capio  also,  possibly 
under  a  slightly  altered  name,  was  a  mode  of  execution 
in  later  times  against  property  after  decree  ;  but  this 
was  not  its  original  purpose  as  a  Legis  Actio.  It  was 
at  first  a  wholly  extra-jndicial  proceeding.  The  per- 
son who  proceeded  by  it  seized  in  certain  cases  the 
goods  of  a  fellow- citizen,  against  whom  he  had  a 
claim,  but  against  whom  he  had  not  instituted  a  suit. 
The  power  of  seizure  could  be  exercised  by  soldiers 
against  public  officers  bound  to  supply  them  with 
pay,  horse,  or  forage;  and  it  could  also  be  resorted  to 
by  the  seller  of  a  beast  for  sacrifice  against  a  default- 
ing purchaser.  It  was  thus  confined  to  claims  of 
great  urgency  or  of  highly  sacred  obligation ;  but  it 
was  afterwards  extended  to  demands  for  overdue  ar- 
rears of  public  revenue.  I  am  indebted  to  Mr.  Poste 
for  the  observation  that  the  ideal  institutions  of 
Plato's  Laws  include  something  strongly  resembling 
the  Roman  Pignoris  Capio;  and  here  again  it  is  a 
remedy  for  breach  of  public  duties  connected  with 
military  service  or  religious  observance. 

I  take  the  Pignoris  Capio  as  the  immediate  starting- 
point  of  all  which  I  am  about  to  say  on  the  subject 
of  Ancient  Civil  Procedure.  First  of  all  let  us  ask 
whether  Gaius  himself  gives  us  any  hint  of  its  mean- 
ing and  significance  in  the  primitive  Roman  system. 
The  clue  is  slender,  but  it  seems  to  me  sufficiently 
traceable  in  the  statement  that  the  Pignoris  Capio 


LSCT.  ix.  ANTIQUITY  OF  WAGERING.  259 

could  be  resorted  to  in  the  absence  of  the  Praetor  and 
generally  in  that  of  the  person  under  liability,  and 
also  that  it  might  be  carried  out  even  when  the  Courts 
were  not  sitting. 

Let  us  go  back  for  a  moment  to  the  parent  Legis 
Actio — the  L.  A.  Sacramenti.  Its  venerable  forms 
presuppose  a  quarrel  and  celebrate  the  mode  of 
settling  it.  It  is  a  passing  arbitrator  whose  interpo- 
sition is  simulated  by  the  Praetor.  But  suppose  there 
is  no  arbitrator  at  hand.  What  expedient  for  averting 
bloodshed  remains,  and  is  any  such  expedient  reflected 
in  that  ancient  procedure  which,  by  the  fact  of  its  ex- 
istence, implies  that  the  shedding  of  blood  has  some- 
how been  prevented? 

I  dare  say  I  shall  at  the  outset  appear  to  be  making 
a  trivial  remark  when  I  say  that  one  method  of 
gaining  the  object  is  to  lay  a  wager.  Even  now  this 
is  one  of  the  commonest  ways  of  postponing  a  dispute 
as  to  a  matter  of  fact,  and  the  truth  is  that  the 
tendency  to  bet  upon  results  lies  extremely  deep  in 
human  nature,  and  has  grown  up  with  it  from  its 
remote  infancy.  It  is  not  everybody  who,  when  his 
blood  is  hot,  will  submit  to  have  a  quarrel  referred 
to  a  third  person  present,  much  less  to  a  third  person 
absent;  but  he  will  constantly  do  so,  if  he  lays  a 
wager  on  it,  and  if,  besides  being  found  in  the  right, 
he  has  a  chance  of  receiving  the  amount  staked.  And 
this  I  suppose — differing,  I  own,  from  several  high 

•  1 


200  SEIZURE   OF   GOODS.  LECT.  u 

authorities — to  be  the  true  significance  of  the  Sponsio 
and  Restipulatio,  which  we  know  to  have  been  of  the 
essence  of  the  ancient  Roman  Condictio,  and  of  the 
agreement  to  appear  before  the  Praetor  in  thirty  days. 
The  Legis  Actio  Sacramenti  assumes  that  the  quarrel 
is  at  once,  referred  to  a  present  arbitrator;  the  Con- 
dictio that  the  reference  is  to  the  decision  of  an  arbi- 
trator after  thirty  days'  interval,  but  meantime  the 
parties  have  entered  into  a  separate  wager  on  the 
merits  of  their  dispute.  We  know  that  the  liability 
to  an  independent  penalty  attached  to  the  suitor  by 
Condictio  even  when  it  had  become  one  of  the  most 
important  Roman  actions,  and  that  it  was  still  exacted 
in  the  age  of  Cicero. 

There  is  yet  another  primitive  contrivance  by 
which,  in  the  absence  of  a  present  arbitrator,  a  quarrel 
may  be  prevented  from  issuing  in  bloodshed.  The 
claimant  willing  to  go  to  arbitration  may,  in  the  ab- 
sence of  his  adversary,  or  if  he  be  the  stronger,  in  his 
presence,  take  forcible  possession  of  his  moveable  pro- 
perty and  detain  it  till  he  too  submits.  I  believe  this 
to  have  been  the  true  primitive  office  of  the  Pignoris 
Capio,  though  the  full  evidence  of  my  opinion  will  not 
be  before  you  till  I  have  tracked  the  same  institution 
through  the  twilight  of  other  legal  systems.  Among 
the  Romans,  even  at  the  date  of  the  Twelve  Tables, 
it  had  become  (to  employ  Mr.  Tylor's  phrase)  a  mere 
survival,  confined  to  cases  when  the  denial  of  justice 


LECT.  n.  DISTRAINT   OF   GOODS.  261 

was  condemned  by  superstition  or  by  a  sense  of  the 
sternest  public  emergency;  and  this  was  a  consequence 
of  the  exceptionally  rapid  development  of  Roman 
law  and  procedure,  and  of  the  exceptionally  early 
date  at  which  the  Roman  tribunals  became  the  organs 
of  the  national  sovereignty.  You  will  see  hereafter 
how  much  reason  there  is  for  thinking  that  the  pro- 
gress of  most  societies  towards  a  complete  adminis- 
tration of  justice  was  slow  and  gradual,  and  that  the 
Commonwealth  at  first  interfered  through  its  various 
organs  rather  to  keep  order  and  see  fair  play  in 
quarrels  than  took  them,  as  it  now  does  always  and 
everywhere,  into  its  own  hands.  To  this  period,  long 
forgotten  among  the  Romans,  those  peculiar  rules 
pointed  back  which  survived  along  with  the  Pignoris 
Capio,  and  which  provided  for  its  exercise  out  of 
court  and  during  the  judicial  vacation. 

I  turn  to  the  Teutonic  societies  for  vestiges  of  a 
practice  similar  to  that  which  the  Romans  called 
Pignoris  Capio.  They  seem  to  be  quite  unmistake- 
able  in  that  portion  of  our  own  English  law  which  is 
concerned  with  the  power  of  Distraint  or  Distress 
and  with  the  connected  legal  remedy  known  as  Re- 
plevin. The  examples  of  the  right  to  distrain  another 
man's  property  which  are  most  familiar  to  you  are, 
I  dare  say,  the  landlord's  right  to  seize  the  goods  of 
his  tenant  for  unpaid  rent,  and  the  right  of  the  lawful 
possessor  of  land  to  take  and  impound  stray  beasts 


262  DISTRESS   FOR  RENT.  LBCT.  ix 

which  are  damaging  his  crops  or  soil.  The  process 
by  which  the  latter  right  is  made  effectual  retains  far 
more  of  the  ancient  institution  than  does  distress 
for  rent.  For  the  peculiar  power  of  the  landlord  to 
distrain  for  rent,  while  it  remains  an  extrajudicial 
remedy,  has  been  converted  into  a  complete  remedy 
of  its  kind  by  a  series  of  statutes  comparatively 
modern.  It  has  always,  however,  been  the  theory 
of  the  most  learned  English  lawyers  that  distress 
is  in  principle  an  incomplete  remedy;  its  primary 
object  is  to  compel  the  person  against  whom  it  is 
properly  employed  to  make  satisfaction.  But  goods 
distrained  for  rent  are  nowadays  not  merely  held 
as  a  security  for  the  landlord's  claim ;  they  are  ul- 
timately put  up  for  sale  with  certain  prescribed 
formalities,  the  landlord  is  paid  out  of  the  pro- 
ceeds, and  the  overplus  is  returned  to  the  tenant. 
Thus  the  proceeding  has  become  merely  a  special 
method  by  which  payment  of  rent,  and  certain  other 
payments  which  are  placed  on  the  same  footing,  are 
enforced  without  the  help  of  a  Court  of  Justice.  But 
the  distraint  of  cattle  for  damage  still  retains  a  variety 
of  archaic  features.  It  is  not  a  complete  remedy. 
The  taker  merely  keeps  the  cattle  until  satisfaction 
is  made  to  him  for  the  injury,  or  till  they  are  returned 
by  him  on  an  engagement  to  contest  the  right  to 
distrain  in  an  action  of  Replevin. 

The  practice  of  Distress — of  taking  naniSj  a  word 


LECT.  iz.  COURSE   OF   A   DISTRESS.  203 

preserved  in  the  once  famous  law -term,  withernam — 
is  attested  by  records  considerably  older  than  the  Con- 
quest. There  is  reason  to  believe  that  anciently  it 
was  resorted  to  in  many  more  cases  than  our  oldest 
Common-law  authorities  recognise ;  but  about  the 
reign  of  Henry  the  Third,  when  it  was  confined 
to  certain  specific  claims  and  wrongs,  the  course  of 
the  proceeding  was  as  follows  :  The  person  assuming 
himself  to  be  aggrieved  seized  the  goods  (which 
anciently  were  almost  always  the  cattle)  of  the  per- 
son whom  he  believed  to  have  injured  him  or  failed 
in  duty  towards  him.  He  drove  the  beasts  to  a 
pound,  an  enclosed  piece  of  land  reserved  for  the 
purpose,  and  generally  open  to  the  sky.  Let  me 
observe  in  passing  that  there  is  no  more  ancient 
institution  hi  the  country  than  the  Village-Pound. 
It  is  far  older  than  the  King's  Bench,  and  probably 
older  than  the  Kingdom.  While  the  cattle  were  on 
their  way  to  the  pound  the  owner  had  a  limited 
right  of  rescue  which  the  law  recognised,  but  which 
he  ran  great  risk  in  exercising.  Once  lodged  within 
the  enclosure,  the  impounded  beasts,  when  the  pound 
was  uncovered,  had  to  be  fed  by  the  owner  and  not 
by  the  distrainor ;  nor  was  the  rule  altered  till  the 
present  reign.  The  distrainor's  part  in  the  proceed- 
ings ended  in  fact  with  the  impounding  ;  and  we 
have  to  consider  what  courses  were  thereupon  open 
to  the  person  whose  cattle  had  been  seized.  Of  course 


264  COURSE   OF  A  DISTRESS.  LECX,  ix. 

he  might  submit  and  discharge  the  demand.  Or  he 
might  tender  security  for  its  acquittal.  Or  again  he 
might  remain  obstinate  and  leave  his  beasts  in  the 

o 

pound.  It  might  happen,  however,  that  he  altogether 
denied  the  distrain or's  right  to  distrain,  or  that  the 
latter,  on  security  being  tendered  to  him  for  the 
adjustment  of  his  claim,  refused  to  release  the  cattle. 
In  either  of  these  cases  the  cattle-owner  (at  least  at 
the  time  of  which  we  are  speaking)  might  either 
apply  to  the  King's  Chancery  for  a  writ  commanding 
the  Sheriff  to  '  make  replevin,'  or  he  might  verbally 
complain  himself  to  the  Sheriff,  who  would  then 
proceed  at  once  to  '  replevy.'  The  process  denoted  by 
this  ancient  phrase  consisted  of  several  stages.  The 
Sheriff  first  of  all  demanded  a  view  of  the  impounded 
cattle ;  if  this  were  refused,  he  treated  the  distrainor 
as  having  committed  a  violent  breach  of  the  King's 
peace,  and  raised  the  hue  and  cry  after  him.  If  the 
cattle  (as  doubtless  constantly  was  the  case)  had  been 
driven  to  a  distance  and  out  of  his  jurisdiction,  the 
Sheriff  sought  for  cattle  of  the  distrainor  and  seized 
them  to  double  the  value  of  the  beasts  which  were 
not  forthcoming — the  'taking  in  withernam'  of  old 
English  law.  In  more  peaceable  times,  however,  and 
among  law-abiding  people,  the  deputy  of  the  Crown 
was  allowed  to  see  the  cattle,  which  he  immediately 
returned  to  their  original  owner  on  a  pledge  to  abide 
by  the  decision  of  a  Court  of  Justice.  A  day  was 


uci.  ix.      ANTIQUITY   OP   PROCEDURE   IN  DISTRESS.  265 

then  appointed  for  the  trial,  which  took  place  with 
the  proceeding  well  known  to  lawyers  as  the  Action 
of  Keplevin.  A  great  deal  of  technical  learning  has 
clustered  round  it,  but  for  our  purposes  it  is  enough  to 
say  that  the  plaintiff  in  the  action  was  the  owner  of 
the  distrained  cattle  and  the  defendant  was  the 
di  strainer. 

The  comparative  antiquity  of  the  various  steps  in 
the  procedure  are  not,  I  think,  difficult  to  detect. 
Nothing  can  be  more  archaic  than  the  picture  pre- 
sented by  its  more  venerable  details.  The  seizure  of 
the  cattle,  the  rescue  and  the  counter- seizure,  belong 
to  the  oldest  practices  of  mankind.  We  were  carried 
back,  by  the  Legis  Actio  Sacramenti  of  the  Komans, 
to  a  sudden  fight  over  disputed  property  barely 
stopped  by  a  casual  passer-by.  Here,  not  in  a  city- 
community,  but  among  the  ancient  legal  forms  of  a 
half-pastoral,  half-agricultural  people,  we  come  upon 
plain  traces  of  a  foray.  But  the  foray  which  survives 
in  the  old  Law  of  Distress  is  not,  like  the  combat  of 
the  ancient  Roman  Action,  a  mere  dramatic  represen- 
tation. Up  to  a  certain  point  it  is  a  reality,  and  the 
most  probable  account  of  its  origin  is  that  it  is  a 
genuinely  disorderly  proceeding  which  the  law  steps 
in  to  regulate.  You  will  see  presently  that  there 
are  other  independent  reasons  for  thinking  that  some 
of  the  earliest  interferences  of  the  power  which  we 
call  the  Law,  the  St.^te,  or  the  King,  with  high-handed 


266  PRIMITIVE   OBJECTS   OF   DISTRESS.         LECT.  a. 

violence  consisted,  neither  in  wholly  forbidding  it  nor 
in  assuming  active  jurisdiction  over  the  quarrel  which 
provoked  it,  but  in  limiting  it,  prescribing  forms  for 
it,  or  turning  it  to  new  purposes.  Thus  the  next 
series  of  incidents  in  the  practice  of  distraint — the 
impounding,  the  stress  laid  upon  pledge  or  security, 
and  the  acknowledgment  of  continuing  ownership 
which  is  implied  in  the  liability  of  the  person  dis- 
trained upon  to  feed  the  cattle,  and  in  the  rule  that 
the  distrainor  shall  not  work  them — belong  to  a 
newer  range  of  ideas  which  dictate  the  first  attempts 
to  moderate  reprisals  and  regulate  revenge  for  wrong. 
Distress  now  becomes  a  semi-orderly  contrivance  for 
extorting  satisfaction.  Many  vestiges  of  this  ancient 
function  remain.  It  has  been  observed  by  Blackstone 
and  others  that  the  modified  exemption  of  certain 
classes  of  goods  from  distraint — plough-oxen,  for 
example,  and  tools  of  trade — was  not  in  its  origin  the 
least  intended  as  a  kindness  to  the  owner.  It  was 
entailed  by  the  very  nature  of  the  whole  proceeding, 
since  without  the  instruments  of  tillage  or  handicraft 
the  debtor  could  never  pay  his  debt.  A  passage  in 
the  'Dialogus  de  Scaccario'  (ii.  14),  prescribing  the 
order  in  which  the  goods  of  the  King's  debtors  are 
to  bu  sold,  strongly  bears  out  this  view. 

Latest  in  the  order  of  proceeding,  and  latest  pro- 
bably in  date,  came  the  direct  interposition  of  the 
State.  The  King  steps  in,  first,  in  what  we  should  now 


LECT.  ix.      PECULIARITIES    OF   ACTION    OP   REPLEVIN.          267 

call  his  administrative  capacity.  His  administrative 
deputy,  the  Sheriff,  on  complaint  made  by  their  owner, 
follows  up  the  cattle,  demands  a  sight  of  them,  raises 
the  hue  and  cry  if  it  be  refused,  and  seizes  twice 
their  number  if  the  beasts  have  been  driven  away. 
Even  when  he  obtains  his  view,  he  can  do  nothing 
unless  the  cattle-owner,  denying  the  right  of  his  ad- 
versary to  distrain,  is  prepared  with  security  that  he 
will  try  the  question  between  them  in  a  Court  of 
Justice.  Thus  tardily  does  that  power  make  its  ap- 
pearance which  according  to  our  notions  should  long 
since  have  appeared  on  the  scene,  the  judicial  power 
of  the  Commonwealth.  Its  jurisdiction  is  obviously 
acquired  through  the  act  of  the  Sheriff  in  restoring 
the  cattle  upon  pledge  given.  The  distrainor  has 
lost  his  material  security,  the  cattle.  The  owner  of 
the  cattle  has  become  personally  bound.  And  thus 
both  are  placed  under  a  compulsion  which  drives 
them  in  the  end  to  a  judicial  arbitration. 

Nearly  six  hundred  years  ago,  the  contrast  be- 
tween the  ancient  proceedings  in  Replevin  and  suits 
conducted  on  what  were  then  modern  principles  was 
already  striking  The  second  chapter  of  the  Statute 
of  Westminster  the  Second  is  aimed  at  certain  contri- 
vances by  which  tenants  contrived  to  defeat  the  lord's 
remedy  by  distress;  and,  in  giving  the  King's  Justices 
jurisdiction  in  such  cases,  it  goes  on  to  say  that  such 
a  provision  does  not  militate  against  the  principle  of 


268  THE   ACTION   OP  REPLEVIN.  LECT.  li 

the  Common  Law  which  forbids  the  removal  of  suits 
to  the  Justices  on  the  petition  of  a  defendant.  'For,' 
it  adds,  '  although  at  first  sight  the  tenant  may  seem 
to  be  plaintiff  and  the  lord  defendant,  yet  in  reality, 
regard  being  had  to  the  fact  that  the  lord  distrains 
and  sues  for  services  and  dues  behind,  he  is  rather 
plaintiff  or  complainant  than  defendant.'  The  action 
of  Replevin  is  in  fact  an  excellent  illustration  of  the 
difference  between  ancient  and  modern  juridical 
principles.  According  to  ideas  now  confirmed  in  us, 
the  person  who  sets  a  Court  of  Justice  in  motion  is 
the  person  who  complains  of  a  wrong.  In  the  case 
supposed,  this  is  not  the  man  distrained  upon  but  the 
man  who  distrains.  He  it  is  who  has  suffered  an  in- 
jury for  which  he  made  reprisals  on  his  adversary's 
property.  Yet  it  is  his  adversary  who  has  to  start 
the  legal  procedure  and  to  constitute  himself  plaintiff 
in  the  Action  of  Replevin.  The  reason  why  a  modern 
Court  of  Justice  would  insist  on  taking  the  whole 
dispute  into  its  own  hands,  and  dealing  with  it  in  its 
own  way  from  the  very  beginning,  is  that,  having 
always  the  full  command  of  the  public  force,  it  is  sure 
of  being  able  to  compel  the  submission  of  the  defend- 
ant to  its  jurisdiction  and  of  coercing  him  in  the  end 
till  he  does  justice,  however  long  the  coercion  may 
be  delayed.  But  at  the  era  to  which  the  procedure 
in  distress  originally  belonged,  the  Court  had  no  such 
assurance  of  power ;  and  hence  the  person  assumed  to 


LECT.  a.  THE   LEGES   BARBARORUM.  2(59 

have  a  grievance  is  allowed  to  proceed  according  to 
the  primitive  method,  which  has  the  advantage  of 
giving  the  other  side  the  strongest  inducements  to 
call  in  the  judicial  authority  of  the  State  and  submit 
to  its  decision. 

The  information  furnished  to  us  respecting  this 
primitive  procedure  by  the  various  bodies  of  Continen- 
tal Teutonic  law  known  collectively  as  the  Leges 
Barbarorum  is  of  a  very  interesting  kind.  Almost 
all  of  them  contain  references  to  Pignoratio  or  dis- 
traint of  goods.  The  Yisigothic  law  expressly  pro- 
hibits it ;  and,  at  the  other  end  of  the  scale,  the  Lom- 
bardic  law  has  a  trace  of  that  licence  of  distress  which 
has  survived  in  the  English  Common-law  and  permits 
it  after  simple  demand  of  payment.  But  the  Salic 
law,  which  the  most  learned  Germans  now  believe  to 
have  been  drawn  up  at  some  period  between  the  time 
at  which  Tacitus  wrote  and  the  time  at  which  the 
Franks  broke  into  the  Empire,  contains  a  series  oi 
very  peculiar  and  instructive  provisions  on  the  sub- 
ject, which  have  been  for  the  first  time  fully  interpre- 
ted by  Sohm.  Under  this  system,  Distress  is  not  yet 
a  judicial  remedy;  it  is  still  an  extrajudicial  mode  of 
redress,  but  it  has  been  incorporated  with  a  regular 
and  highly  complex  procedure.  A  succession  of 
notices  have  to  be  given  in  solemn  form  by  the  com- 
plainant to  -the  person  of  whom  he  complains,  and 
whose  property  he  proposes  to  seize.  Nor  can  he 


270  ANCIENT  TEUTONIC  FORMS  OF  DISTRAINT.      LECT.  ix. 

proceed  to  seizure  until  he  has  summoned  this  person 
before  the  Popular  Court,  and  until  the  Popular 
Officer  of  the  Court,  the  Thunginus,  has  pronounced 
a  formula  licensing  distraint.  Then,  and  not  till  then, 
he  can  make  what  we  should  call  a  distress  upon  his 
adversary.  It  seems  quite  clear  that,  before  the 
Conquest,  attempts  were  made  in  England  to  narrow 
the  liberty  of  distraint  by  the  same  class  of  restrictions 
which  we  find  in  the  Salic  Law  and  the  allied  Teutonic 
bodies  of  usage.  These  provisions  have  their  close 
counterpart  in  the  ordinance  of  Canute  that  no  man  is 
to  take  nams  unless  he  has  demanded  right  three 
times  in  the  Hundred ;  if  he  obtain  no  justice  the 
third  time,  he  is  to  go  to  the  Shire-gemot ;  the  shire 
is  to  appoint  him  a  fourth  time,  and,  if  that  fails,  he 
may  take  the  distress. 

It  is  to  be  remarked  that  the  process  of  the  Salic 
Law  which  answers  to  our  distress  is  especially  a 
remedy  in  certain  cases  of  breach  of  contract.  Dis- 
traint, the  seizing  of  nams,  was  certainly  employed  to 
enforce  a  similar  class  of  demands  under  old  English 
law  before  the  Conquest ;  and  the  practice  seems  to 
have  been  known  in  Bracton's  day,  though  the 
brevity  of  his  notice  does  not  permit  us  to  understand 
fully  its  course  and  character.  In  this  respect  the 
Pignoration  of  the  Continental  Teutonic  law  is  more 

o 

archaic  than  the  distress  with  which  we  are  familiar 
in  England,  since  the  fragment  of  the  system  which 


LECT.  n.  PRANKISH  PROCEDURE.  271 

has  survived  in  our  Common  law  (and  it  is  to  this 
that  it  probably  owes  its  survival)  was  from  the  first 
pre-eminently  a  remedy  by  which  the  lord  compelled 
his  tenants  to  render  him  their  services.  But  on  the 
other  hand  it  is  interesting  to  observe  that  our  Eng- 
lish distress  is  in  some  particulars  of  a  more  archaic 
character  than  the  corresponding  compulsory  process 
of  the  Leges  Barbarorum.  Thus  notice  of  the  inten- 
tion to  distrain  was  never  in  England  essential  to  the 
legality  of  distress  (Trent  v.  Hunt,  9  Exch.  Rep. 
20),  although  statute-law  renders  it  necessary  to 
make  a  sale  of  the  distrained  property  legal;  and 
again,  in  the  oldest  ascertainable  state  of  our  Com- 
mon-law, though  distraint  sometimes  followed  a  pro- 
ceeding in  the  lord's  Court,  yet  it  did  not  necessarily 
presuppose  or  require  it. 

It  should  be  understood  that  the  Frankish  pro- 
cedure was  completely  at  the  disposal  of  the  com- 
plainant. It  is  not  a  strictly  judicial  procedure,  but 
rather  a  procedure  regulating  extrajudicial  redress. 
If  the  complainant  observes  the  proper  forms,  the 
part  of  the  Court  in  licensing  seizure  is  purely 
passive.  Even  after  the  exhaustive  examination 
which  this  part  of  the  Salic  Law  has  undergone  from 
Professor  Sohm,  it  is  very  difficult  to  say  whether  at 
any  point  of  the  procedure  the  defendant  had  the 
opportunity  of  putting  in  a  substantial  defence ;  but 
it  seems  certain  that,  whenever  he  could  do  this,  he 


272    ANCIENT  VIEW  OF  PLAINTIFF  AND  DEFENDANT.   LECT.  IX. 

appeared  virtually  as  a  plaintiff  like  the  distrainee  in 
our  Action  of  Replevin,  and  there  is  no  doubt  that, 
if  he  submitted  or  was  unsuccessful  in  attacking  the 
proceedings  of  the  other  side,  he  paid  not  only  the 
original  debt  but  various  additional  penalties  entailed 
by  neglect  to  comply  with  previous  notices  to  dis- 
charge it.  Such  a  procedure  seems  to  us  founded  on 
the  now  monstrous  assumption  that  plaintiffs  are 
always  in  the  right  and  defendants  always  in  the 
wrong.  Yet  the  assumption  would  not  perhaps 
have  struck  the  earliest  authors  of  legal  improvement 
as  altogether  monstrous,  nor  could  they  have  quite 
comprehended  the  modern  principle  which  compels 
the  complainant  to  establish  at  all  events  a  primd 
facie  case.  With  them,  the  man  most  likely  to  be  in 
the  right  would  appear  to  be  the  man  who  faced  the 
manifold  risks  attending  the  effort  to  obtain  redress, 
the  man  who  complained  to  the  Popular  Assembly, 
the  man  who  cried  for  justice  to  the  King  sitting  in 
the  gate.  It  is  only  when  violent  wrong  has  ceased 
to  be  rife,  when  the  dangers  of  contesting  the  op- 
pressions of  powerful  men  have  become  insignificant, 
when  the  law  has  been  long  and  regularly  adminis- 
tered according  to  technical  procedure,  that  unjust 
claims  are  seen  to  be  at  least  as  common  as  unjust 
refusals  to  satisfy  them.  In  one  particular  case,  the 
complaint  of  the  King,  the  old  assumption  that  com- 
plainants are  presumably  in  the  right  was  kept  long 


LECT.  rx.  GAIUS   AND   BLACKSTONB.  273 

alive  among  us,  and  had  much  to  do  with  the  obsti- 
nate dislike  of  lawyers  to  allowing  prisoners  to  be 
defended  by  Counsel. 

Gaius,  speaking  of  the  Leges  Actiones  generally, 
observes  that '  they  fell  into  discredit,  because  through 
the  excessive  subtlety  of  the  ancient  lawyers,  things 
came  to  such  a  pass  that  he  who  committed  the 
smallest  error  failed  altogether/ 

Blackstone,  many  centuries  afterwards,  has  the 
following  remark  on  the  English  Law  of  Distress: 
*  The  many  particulars  which  attend  the  taking  of  a 
distress  used  formerly  to  make  it  a  hazardous  kind  of 
proceeding ;  for,  if  any  one  irregularity  was  com- 
mitted, it  vitiated  the  whole.' 

I  quote  these  passages,  not  only  on  account  of  the 
curious  similarity  of  language  between  two  writers 
of  whom  the  later  could  not  possibly  have  read  the 
earlier,  but  because  the  excessive  technicality  of 
ancient  law  which  they  both  notice  goes  some  way 
to  explain  the  severity  and  onesidedness  of  the  old 
Teutonic  procedure.  The  power  of  seizing  a  man's 
property  extrajudicially  in  satisfaction  of  your  de- 
mand was,  as  Professor  Sohm  justly  remarks,  a  sort 
of  two-edged  sword.  You  might  bring  your  adver- 
sary to  the  ground  by  it,  but  you  were  extremely 
likely  to  injure  yourself.  For,  unless  the  com- 
plainant who  sought  to  distrain  went  through  all  the 
acts  and  words  required  by  the  law  with  the  most 

T 


274  REASONS   FOR   SURVIVAL   OF   DISTRESS.      IECT.  ix. 

rigorous  accuracy,  he  in  his  turn,  besides  failing  in 
his  object,  incurred  a  variety  of  penalties,  which 
could  be  just  as  harshly  exacted  as  his  own  original 
demand.  The  difficulty  of  putting  the  procedure 
into  operation  thus  at  once  made  disputants  cautious 
in  resorting  to  it,  and  seemed  to  men  in  general  to 
compensate  for  its  inherent  inequitableness.  This 
consideration,  however,  though  it  explains  in  part 
how  the  harsh  ancient  law  reconciled  itself  to  the 
sense  of  right,  is  not  by  itself  sufficient  to  account 
for  the  form  which  it  assumed  in  the  Teutonic  Codes, 
or  for  the  vitality  of  a  portion  of  it  amid  our  own 
institutions. 

I  cannot  doubt  that  the  practice  which  I  have 
called  by  the  general  name  of  Tistress  kept  its  place 
in  ancient  Teutonic  law  partly  as  a  mere  *  survival.' 
I  have  already  insisted  that  one  great  characteristic 
of  the  primitive  ages  was  the  fewness  of  human  ideas. 
Societies,  just  emerging  from  the  savage  state,  had 
been  used  to  associate  redress  of  wrong  with  the 
seizure  of  a  wrong-doer's  goods,  and  they  were  un- 
able mentally  quite  to  disconnect  the  two  even  when 
they  began  to  regulate  the  practice.  They  did  not, 
therefore,  supersede  distress  by  a  wholly  new  system, 
but  engrafted  it  on  a  later  procedure,  which  occa- 
sionally took  the  form  so  curiously  preserved  in  its 
main  features  to  our  own  day  by  the  English  Corn- 
mon  law,  but  which  at  a  relatively  later  date  and 


tier.  LX.        JTJDKIAL   PROCEDURE   OF   SALIC  LAW.  275 

more  generally  may  be  believed  to  have  shaped  itself 
on  the  model  of  the  rules  observed  by  the  Salian 
Franks. 

It  is  not  possible  to  explain  all  survivals  by  some 
convenience  which  they  incidentally  serve.  Some 
have  undoubtedly  been  continued  by  superstition, 
some  by  mere  habit.  But  those  relics  of  ancient 
thought  and  conduct  which  have  been  kept  alive 
longest  have  generally  had  an  usefulness  of  their 
own.  Here  the  private  redress  of  wrong,  taken  intc 
the  legal  procedure,  served  to  compel  the  appearance 
of  the  defendant  and  his  submission  to  jurisdiction 
at  a  time  when  judicial  authority  was  yet  in  its  in- 
fancy, and  when  Courts  of  Justice  could  not  as  yet 
completely  and  regularly  command  the  aid  of  sove- 
reign power.  Gradually,  as  the  public  force,  the  arm 
of  the  State,  was  more  and  more  placed  at  the  disposal 
of  tribunals,  they  were  able  more  and  more  to  dis- 
pense with  extrajudicial  assistance.  In  the  state  of 
Teutonic  law  represented  by  the  Frankish  Code,  we 
find  a  specific  class  of  cases  tried  throughout  judicially 
(in  our  modern  sense  of  the  word)  from  the  initial 
stage  to  the  judgment;  but  the  judgment  is  not  by  its 
own  force  operative.  If  the  defendant  has  expressly 
promised  to  obey  it,  the  Count  or  royal  deputy,  on 
being  properly  summoned,  will  execute  it;  but  if  no 
such  promise  has  been  made,  the  plaintiff  has  nc 
remedy  except  an  application  to  the  King  in  person. 

I  2 


27vJ  LATER   HISTORY   OF  DISTRESS.  lacr,  IX 

No  long  time,  however,  after  the  Franks  have  been 
settled  within  the  Empire,  we  find  that  another  step 
has  been  taken  towards  the  administration  of  justice 
on  modern  principles,  and  now  the  royal  deputy  will 
execute  the  judgment  even  though  there  has  been  no 
promise  to  submit  to  it.  At  this  point  Distress  is 
wholly  taken  out  of  the  hands  of  private  litigants 
and  extrajudicial  seizure  becomes  judicial  seizure. 
The  change  is  obviously  a  result  of  the  growing 
vigour  of  Courts,  greatly  due  in  our  own  country  to 
the  development  of  royal  justice  at  the  expense  of 
popular  justice.  Still  English  judicial  proceedings 
long  savoured  of  the  old  practices.  Every  student  of 
our  ancient  English  forms  of  proceeding  will  recollect 
on  what  small  apparent  provocation  the  King  con- 
stantly took  the  lands  of  the  defendant  into  his  hands 
or  seized  his  goods,  simply  to  compel  or  perfect  his 
submission  to  the  royal  jurisdiction.  It  seems 
probable  that  Distress  was  gradually  lost  in  and 
absorbed  by  Attachment  and  Distringas.  The  theory 
of  Attachment  now  is  that  it  is  the  taking  of  property 
into  the  actual  or  constructive  possession  of  the 
judicial  power,  and  the  later  course  of  change  under 
which  it  has  faded  into  an  occasional  and  exceptional 
proceeding,  requiring  to  be  justified  by  special 
reasons,  corresponds  with  the  growing  confidence  of 
Courts  of  Justice  in  their  possession  of  irresistible 
power  confided  to  them  by  the  sovereign.  As  regards 


LECT.  tx.  MODERN   THEORY   OF   DISTRESS.  £77 

that  fragment  of  the  primitive  institutioD  which 
remains  in  our  law,  I  imagine  that  Distress  would 
at  most  have  become  a  mere  survival,  confined  perhaps 
to  the  impounding  of  stray  cattle,  if  several  statutory 
innovations  had  not  turned  it  into  a  convenient  extra- 
judicial  remedy  for  landlords,  by  giving  the  distrainor 
a  power  of  sale  which  in  old  English  law  was  limited 
to  a  few  very  special  demands.  The  modern  theory 
of  Distress  is  that  a  landlord  is  allowed  to  distrain 
because  by  the  nature  of  the  case  he  is  always  com- 
pelled to  give  his  tenant  credit,  and  that  he  can 
distrain  without  notice  because  every  man  is  supposed 
to  know  when  his  rent  is  due.  But  this  theory, 
though  it  explains  the  continuance  of  Distress  to  our 
day,  does  not  at  all  fit  in  with  the  most  ancient  ideas 
on  the  subject,  and  could  not  indeed  be  easily  made  to 
square  with  the  practice  of  distraint  even  at  a  date  so 
comparatively  late  as  that  at  which  Bracton  wrote. 
How  accidental  is  the  association  of  Distress  with  the 
powers  of  landlords  may  be  seen  from  the  fact  that, 
though  there  are  plentiful  traces  of  the  institution  in 
the  ancient  Scottish  law,  the  same  practical  results 
which  the  English  system  produces  by  allowing  land- 
lords to  distrain  for  rent  are  chiefly  attained  in  Scot- 
land by  applying  to  landlord  and  tenant  the  Ro- 
manised Law  of  Hypothek. 

The  comparison  of  the  various  Teutonic  bodies 
of  law  suggests  then  to  my  mind,  as  regards  those 


DEVELOPMENT  OF  REMEDIES.  LBCT.  IX 

systems,  the  following  conclusions  respecting  the 
historical  development  of  the  remedies  which  grew 
out  of  the  savage  practice  of  violently  seizing  pro- 
perty in  redress  for  supposed  wrong.  Two  alternative 
expedients  were  adopted  by  nascent  law.  One  of 
these  consisted  in  tolerating  distraint  up  to  a  certain 
point ;  it  was  connived  at  so  far  as  it  served  to  compel 
the  submission  of  defendants  to  the  jurisdiction  of 
Courts,  but  in  all  other  cases  it  was  treated  as  wilful 
breach  of  the  peace.  The  other  was  the  incorporation 
of  distraint  with  a  regular  procedure.  The  com- 
plainant must  observe  a  great  number  of  forms  at 
his  peril;  but  if  he  observes  them  he  can  distrain  in 
the  end.  In  a  still  more  advanced  condition  of  legal 
ideas,  the  tribunals  take  the  seizure  of  land  or  goods 
into  their  own  hands,  using  it  freely  to  coerce  de- 
fendants into  submission.  Finally,  Courts  of  Justice 
resort  to  coercion  before  judgment  only  on  the  rarest 
occasions,  sure  as  they  at  last  are  of  the  effectiveness 
of  their  process,  and  of  the  power  which  they  hold  ifl 
deposit  from  the  Sovereign  Commonwealth. 


I.BCT.  x.  IRISH   LAW   OF   DISTRESS.  279 


LECTURE   X. 

THE   PRIMITIVE   FORMS    OF   LEGAL   REMEDIES. 
II. 

I  PASS  from  the  early  law  of  procedure  in  the  Roman 
and  Teutonic  societies  to  the  corresponding  branch 
of  another  ancient  legal  system  which  has  been  only 
just  revealed  to  us,  and  which,  so  far  as  its  existence 
was  suspected,  was  supposed  until  lately  to  be  sepa- 
rated by  peculiarly  sharp  distinctions  from  all  Ger- 
manic bodies  of  usage. 

Rather  more  than  half  of  the  Senchus  Mor  is 
taken  up  with  the  Law  of  Distress.  The  Senchus 
Mor,  as  I  told  you,  pretends  to  be  a  Code  of  Irish 
law,  and  indeed  to  be  that  very  Code  which  was 
prepared  under  the  influence  of  St.  Patrick  upon 
the  introduction  of  Christianity  into  Ireland.  I 
added  that  in  the  present  state  of  our  knowledge, 
no  theory  can  be  very  confidently  advanced  as  to 
the  date  of  this  Brehon  compendium.  It  may  be 
that  some  such  revision  of  the  pre-Christian  law 
did  take  place  ;  it  may  be  that  the  Brehon  lawyers 
only  conjectured  that  it  must  have  taken  place ; 


280  DISTRESS   ACCORDING   TO   SEXCHUS   MOR.      LECT.  X, 

it  may  be  that  a  tract  of  unusual  dimensions  and 
proportionately  valued  by  the  Brehon  law -school 
which  happened  to  possess  it,  came  gradually  to 
be  associated  with  a  name  held  in  pre-eminent 
honour  or  pre-eminently  sacred,  a  process  of  which 
there  are  believed  to  be  several  examples  in  the 
history  of  Eastern  jurisprudence.  These  doubts, 
however,  as  to  the  true  date  of  the  Senchus  Mor  do 
not  take  away  from  the  significance  and  instructive- 
ness  of  the  fact  that  in  a  volume  of  great  antiquity, 
of  undoubted  genuineness,  and  evidently  thought  by 
its  possessors  to  contain  all  that  was  important  in  the 
law,  the  Law  of  Distress,  now  an  extremely  sub- 
ordinate branch  of  our  legal  system,  occupies  a  space 
so  extraordinarily  large. 

I  borrow  from  the  Editor  of  the  First  Volume  of 
*  Ancient  Laws  of  Ireland,'  the  following  epitome  of 
the  old  Irish  law  of  distress  as  laid  down  in  the 
Senchus  Mor : — 

4  The  plaintiff  or  creditor,  having  first  given  the 
proper  notice,  proceeded,  in  the  case  of  a  defendant 
or  debtor,  not  of  chieftain  grade,  to  distrain.  If  the 
defendant  or  debtor  were  a  person  of  chieftain  grade, 
it  was  necessary  not  only  to  give  notice,  but  also  to 
"  fast  upon  him."  The  fasting  upon  him  consisted  in 
going  to  his  residence  and  waiting  there  for  a  certain 
time  without  food.  If  the  plaintiff  did  not  within  a 
certain  time  receive  satisfaction  for  his  claim,  or  a 


LECT.  x.      DISTRESS   ACCORDING   TO   SENCHUS   MOB.  281 

pledge  therefor,  he  forthwith,  accompanied  by  a 
law-agent,  witnesses,  and  others,  seized  his  distress. 
The  distress,  when  seized,  was  in  certain  cases  liable 
to  a  Stay,  which  was  a  period  varying  according  to 
fixed  rules,  during  which  the  debtor  received  back 
the  distress,  and  retained  it  in  his  own  keeping,  the 
creditor  having  a  lien  upon  it.  Such  a  distress  is  a 
"  distress  with  time ; "  but  under  certain  circumstances 
and  in  particular  cases  an  "  immediate  distress  "  was 
made,  the  peculiarity  of  which  was  that  during  the 
fixed  period  of  the  Stay  the  distress  was  not  allowed 
to  remain  in  the  debtor's  possession,  but  in  that  of 
the  creditor,  or  in  one  of  the  recognised  greens  or 
pounds. 

'  If  the  debt  was  not  paid  by  the  end  of  the  Stay. 
the  creditor  took  away  the  distress,  and  put  it  in  a 
pound.  He  then  served  rotice  of  the  distress  on  the 
debtor  whom  he  had  distrained,  letting  him  know 
where  \vhat  was  distrained  was  impounded.  The 
distress  remained  in  the  pound  a  certain  period,  fixed 
according  to  its  nature  (dithim^  translated  "  delay  in 
pound,"  is  the  name  of  this  period).  At  the  end  of 
the  delay  in  pound,  the  Forfeiting  Time  began  to 
run,  during  which  the  distress  became  forfeited  at 
the  rate  of  three  "  seds  "  per  day,  until  entirely  for- 
feited. If  the  entire  value  of  the  distress  thus  for- 
feited was  exactly  equal  to  the  original  debt  and  the 
subsequent  expenses,  the  debt  was  liquidated;  if  it 


382  IEISH  AND   GERMANIC   DISTRESS.  LKCT.  x. 

was  less  than  this,  a  second  distress  was  taken  for  the 
difference ;  and,  if  more,  the  overplus  was  returned. 
All  this  proceeding  was  managed  by  the  party  him- 
self, or  his  law-agent,  with  the  several  witnesses  of 
the  various  steps,  and  other  necessary  parties. 

1  But  if,  instead  of  allowing  his  cattle  to  go  to 
pound,  the  debtor  gave  a  sufficient  pledge,  e.g.,  his 
son,  or  some  article  of  value,  to  the  creditor,  that  he 
would  within  a  certain  time  try  the  right  to  the  dis- 
tress by  law,  the  creditor  was  bound  to  receive  such 
pledge.  If  he  did  not  go  to  law,  as  he  so  undertook, 
the  pledge  became  forfeited  for  the  original  debt.  At 
any  time,  up  to  the  end  of  the  "  dithim,"  the  debtor 
could  recover  his  cattle  by  paying  the  debt  and  such 
expenses  as  had  been  incurred.  But,  if  he  neglected 
to  redeem  them  until  the  "  dithim  "  had  expired,  then 
he  could  only  redeem  such  as  were  still  unforfeited.' 

The  very  existence  in  ancient  Ireland  of  the  law 
thus  summarised  is  almost  enough  by  itself  to  de- 
stroy those  reckless  theories  of  race  which  assert  an 
original,  inherent  difference  of  idea  and  usage  between 
Teuton  and  Celt.  The  Irish  system  of  Distress  ia 
obviously,  in  all  essential  features,  the  Germanic 
system.  It  wears,  on  its  face,  a  very  strong  general 
resemblance  to  the  corresponding  branch  of  our 
Common  Law  ;  and  I  have  seen  some  very  ingenious 
attempts  to  account  for  the  differences  between  the 
two  by  suggestions  that  the  primitive  contour  of  the 


LBCT.  z.  IRISH   AND   ENGLISH   DISTRESS.  283 

English  law  of  Distress  has  been  impaired.  The 
object  of  such  speculations  is  to  argue  for  the  direct 
derivation  of  the  English  set  of  rules  from  the  Celtic ; 
but  it  does  not  appear  to  me  necessary  to  resort  to  a 
supposition  which  has  great  and  special  difficulties  of 
its  own.  The  virtual  identity  of  the  Irish  law  of 
Distress  with  the  Teutonic  law  is  best  brought  out  by 
comparing  it  with  the  Teutonic  systems  of  procedure 
collectively.  Thus  the  Distress  of  the  Senchus  Mor 
is  not,  like  the  Distress  of  the  English  Common  Law, 
a  remedy  confined  in  the  main  to  demands  of  the 
lord  on  his  tenants ;  as  in  the  Salic  and  other  Con- 
tinental Germanic  Codes,  it  extends  to  breaches  of 
contract,  and  indeed,  so  far  as  the  Brehon  law  is 
already  known,  it  would  appear  to  be  the  universal 
method  of  prosecuting  claims  of  all  kinds.  The 
Notice  again  to  the  person  whose  goods  are  to  be  dis- 
trained which  it  strenuously  insists  upon,  though  not 
found  in  the  surviving  English  Common  law,  fills  an 
important  place,  as  I  stated,  in  other  Teutonic  collec- 
tions of  rules.  So  too  the  attendance  of  witnesses  is 
required  by  the  Continental  Codes ;  and,  though  the 
presence  of  the  Brehon  law  agent  is  peculiar  to  the 
Irish  system  and  very  characteristic  of  it,  certain 
persons  having  much  the  same  duties  are  required  by 
some  of  the  Teutonh  systems  to  be  present  during 
the  process  of  distraint.  Further,  the  Stay  of  pro- 
ceedings, which  has  been  compared  to  an  Attach- 


284  IRISH   AND   TEUTONIC  DISTRESS.  LECT.  x 

ment,  seeins  to  me  better  explained  by  certain 
provisions  of  the  '  Leges  Barbarorum.'  Under  some 
of  them  when  a  person's  property  is  about  to  be 
seized  he  makes  a  mimic  resistance  ;  under  the  Salic 
law,  he  protests  against  the  injustice  of  the  attempt ; 
under  the  Kipuarian  law,  he  goes  through  the  ex- 
pressive formality  of  standing  at  his  door  with  a 
drawn  sword.  Thereupon,  the  seizure  is  interrupted 
and  an  opportunity  is  given  for  enquiring  into  the 
regularity  of  the  proceedings  and,  probably  also,  into 
the  justice  of  the  claim.  The  Lien  or  charge  upon 
the  distrained  property,  which  the  Irish  law  confers 
on  the  creditor  during  the  currency  of  the  Stay,  is 
not  found  in  the  Continental  Teutonic  law  in  this 
exact  shape ;  but,  at  a  particular  stage  of  the  Salic 
proceedings,  the  creditor  has  the  power  of  interdicting 
the  debtor  from  selling  or  mortgaging  any  part  of  his 
property  until  the  debt  has  been  satisfied.  On  the 
other  hand,  several  features  of  the  Irish  system, 
which  are  wholly  absent  from  the  Continental  Teu- 
tonic procedure,  or  very  faintly  marked  in  it,  belong 
conspicuously  to  the  English  law.  Among  these 
may  be  placed  the  impounding,  and  the  'taking  in 
withernam,'  but  the  great  resemblance  of  all,  and  the 
common  point  of  dissimilarity  from  the  most  ancient 
of  the  Leges  Barbarorum,  lies  in  the  fact  that  the  Irish 
procedure,  like  the  English,  requires  neither  assist- 
ance nor  permission  from  any  Court  of  Justice.  lu 


.  x.         DIFFICULTIES   AS   TO   IRISH   DISTRESS.  285 

all  the  Teutonic  bodies  of  custom  except  the  English 
and  the  Lombardic,  even  when  the  greatest  latitude 
of  seizure  is  allowed  to  litigants  out  of  Court,  some 
judicial  person  or  body  must  be  applied  to  before 
they  proceed  to  extremities.  With  us,  however,  the 
entire  seizure  is  completed  before  authority  is  called 
in ;  and  the  Irish  law  has  exactly  the  same  pecu- 
liarity. Not  only  so,  but  the  Irish  law  corresponds 
to  the  English  law  of  Distress  in  a  very  advanced 
stage  of  development.  It  does  not  employ  the  seizure 
of  cattle  merely  as  a  method  of  extorting  satisfaction. 
It  provides,  as  you  have  seen,  for  their  forfeiture  in 
discharge  of  the  demand  for  which  they  were  taken ; 
and  thus  is  distinguished  by  an  improvement  which 
was  only  added  to  the  English  law  by  statute  after 
the  lapse  of  several  centuries. 

The  true  difficulty  in  estimating  the  place  of  this 
Irish  procedure  in  the  historical  development  of  law 
arises  from  doubts  as  to  the  part  really  played  by  the 
legal  proceeding  in  which  it  terminated.  The  Eng- 
lish process  of  Distress,  wherever  it  was  felt  to  be 
unjust,  led  up  to,  and  ended  in,  the  action  of  Replevin, 
and  the  Court,  which  ultimately  tried  the  action,  prac- 
tically acquired  its  jurisdiction  through  the  interposi- 
tion of  the  Sheriff  in  restoring  the  cattle  upon  security 
given.  No  such  interference  with  a  high  hand  as 
that  of  the  Sheriff  appears  to  be  contemplated  by  the 
Irish  law ;  but  the  Brehon  lawyer  who  ought  properly 


286  THE  IRISH  COURTS.  LECT.  x. 

to  accompany  the  distrainor  is  expressly  stated  by 
the  Senchus  Mor  to  aid  him  '  until  the  decision  of  a 
Court.'  ('  Ancient  Laws  of  Ireland/  i.  85.)  What 
was  the  proceeding  thus  referred  to  ?  What  autho- 
rity had  the  Irish  Courts  at  any  time  at  which  the 
Brehon  law  was  held  in  respect  ?  What  were  these 
Courts  ?  To  what  extent  did  they  command  the 
public  force  of  the  sovereign  State  ?  Was  there  any 
sovereign  power  at  any  time  established  in  any  part 
of  Ireland  which  could  give  operative  jurisdiction  to 
Courts  of  Justice  and  operative  force  to  the  law  ? 
All  these  questions — of  which  the  last  are  in  truth 
the  great  problems  of  ancient  Irish  history — must  in 
some  degree  be  answered  before  we  can  have  any- 
thing like  a  confident  opinion  on  the  actual  working 
of  the  Law  of  Distress  set  forth  at  such  length  in  the 
Senchus  Mor. 

The  learned  Editors  of  the  various  Introductions 
prefixed  to  the  official  publications  of  Ancient  Irish 
Law  are  plainly  of  opinion  that  such  jurisdiction  as 
any  Irish  Courts  possessed  was,  to  use  the  technical 
phrase,  voluntary.  The  Law  of  Distress,  in  this 
view,  was  clearly  enough  conceived  by  the  Brehon 
lawyers,  but  it  depended  for  the  practical  obedience 
which  it  obtained  on  the  aid  of  public  opinion  and  of 
popular  respect  for  a  professional  caste.  Its  object 
was  to  force  disputants  to  submit  to  what  was  rather 
an  arbitration  than  an  action,  before  a  Brehon  selected 


LECT.  x.      ASSUMED    IRISH   JUDICIAL    ORGANISATION.  287 

by  themselves,  or  at  most  before  some  recognised  tri- 
bunal advised  by  a  Brehon.  At  the  same  time,  it 
would  seem  that  there  are  ancient  Irish  tracts  or 
fragments  of  tracts  in  existence  which  describe  the 
ancient  Irish  as  having  had  a  most  elaborate  public 
organisation,  judicial  as  well  as  legislative.  Dr.  Sul- 
livan, in  his  Introduction,  admits  that  the  information 
which  has  come  down  to  us  on  these  subjects  is  very 
fragmentary,  and  so  obscure  that  it  will  be  impossible 
to  give  a  satisfactory  account  of  them  until  the  whole 
of  the  law-fragments  in  Irish  MSS.  are  published  or 
at  least  made  accessible  to  scholars ;  but  he  never- 
theless believes  in  the  historical  reality  of  this  or- 
ganisation, and  he  speaks  (Introduction,  pp.  cclii. 
cclxii.)  of  the  Irish  Courts  in  language  of  extremely 
modern  tinge.  Enough  is  known  of  Irish  history 
to  make  it  very  difficult  to  understand  when  this 
elaborate  judicial  system  can  have  existed ;  but  a 
place  is  found  for  it  by  attributing  it  to  a  period 
not  only  before  the  Anglo-Norman  invasions  of 
Ireland,  but  before  the  Viking  descents  on  the 
Irish  coasts.  The  safest  course  is  certainly  to 
reserve  one's  opinion  on  the  subject  until  the  au- 
thorities for  Dr.  Sullivan's  statements  have  been 
much  more  critically  examined  than  they  have  been ; 
but  I  am  bound  to  say  that  they  are  not  so  inhe- 
rently improbable,  nor  are  Dr.  Sullivan's  opinions 
BO  hard  to  reconcile  with  the  views  of  the  Editors 


288  ANCIENT  VOLUNTARY  JURISDICTIONS.         LECT.  x, 

of  the  translations,  as  persons  unacquainted  with 
legal  history  might  suppose.  There  are  analogies 
to  many  of  the  tribunals  described  among  the  rudi- 
mentary institutions  of  several  communities.  Such 
tribunals  might  further  be  highly  developed  and  yet 
their  jurisdiction  might  be  only  voluntary.  Sohm 
appears  to  me  to  have  proved  that  the  Frankish 
Popular  Courts  did  not  execute  their  own  decrees  ; 
if  the  defendant  had  promised  to  submit  to  an  award, 
the  local  deputy  of  the  King  might  be  required  to 
enforce  it,  but,  if  there  had  been  no  such  promise,  the 
plaintiff  was  forced  to  petition  the  King  in  person. 
There  is  much  reason  in  fact  for  thinking  that,  in  the 
earliest  times  and  before  the  full  development  of  that 
kingly  authority  which  has  lent  so  much  vigour  to 
the  arm  of  the  law  in  most  Aryan  communities,  but 
which  was  virtually  denied  to  the  Irish,  Courts  of 
Justice  existed  less  for  the  purpose  of  doing  right 
universally  than  for  the  purpose  of  supplying  an 
alternative  to  the  violent  redress  of  wrong.  Even 
then  if  we  suppose  that  the  Ireland  which  is  said  to 
have  enjoyed  an  elaborate  judicial  organisation  was 
greatly  ruder  and  wilder  than  Irish  patriots  would 
probably  allow  it  to  have  been,  there  is  no  such  in- 
consistency between  the  prevalence  of  disorder  and 
the  frequency  of  litigation  as  would  make  them  ex- 
clude one  another.  The  Norse  literature,  which  Mr. 
Dasent  has  popularised  among  us,  shows  that  per- 


IKCT.  x.  LITIGATION   IN   INDIA.  289 

petual  fighting  and  perpetual  litigation  may  go  on 
side  by  side,  and  that  a  highly  technical  procedure 
may  be  scrupulously  followed  at  a  time  when  homi- 
cide is  an  everyday  occurrence.  The  fact  seems  to 
be  that  contention  in  Court  takes  the  place  of  conten- 
tion in  arms,  but  only  gradually  takes  its  place ;  and 
it  is  a  tenable  theory  that  many  of  the  strange  pecu- 
liarities of  ancient  law,  the  technical  snares,  traps, 
and  pitfalls  with  which  it  abounds,  really  represent 
and  carry  on  the  feints,  stratagems,  and  ambuscades 
of  actual  armed  strife  between  man  and  man,  between 
tribe  and  tribe.  Even  in  our  own  day,  when  a  wild 
province  is  annexed  to  the  British  Indian  Empire, 
there  is  a  most  curious  and  instructive  rush  of  suitors 
to  the  Courts  which  are  immediately  established.  The 
arm  of  the  law  summarily  suppresses  violence,  and 
the  men  who  can  no  longer  fight  go  to  law  instead, 
in  numbers  which  sometimes  make  Indian  officials 
believe  that  there  must  be  something  maleficent  in 
the  law  and  procedure  which  tempt  men  into  Court 
who  never  saw  a  Court  before.  The  simple  explana- 
nation  is  that  the  same  natural  impulse  is  gratified  in 
a  new  way  ;  hasty  appeals  to  a  judge  succeed  hur- 
ried quarrels,  and  hereditary  law-suits  take  the  place 
of  ancestral  blood-feuds.  If  the  transition  from  one 
state  of  society  to  another  in  modern  India  were  not 
sudden  but  gradual  and  slow,  as  it  universally  was 
in  the  old  Aryan  world,  we  should  see  the  battle  with 

u 


290  PECULIARITIES   OP   IRISH  DISTRESS.  LECT.  x 

technicalities  going  on  in  Court  at  the  same  time  that 
the  battle  was  waged  out  of  Court  with  sword  and 
matchlock. 

When,  however,  we  are  considering  the  place  in 
legal  history  of  the  old  Irish  Law  of  Distress,  the 
point  to  which  we  have  to  attend  is  not  so  much  the 
mere  existence  of  Courts  of  Justice  as  the  effective- 
ness of  their  process,  or  in  other  words  the  degree  in 
which  they  command  the  public  force  of  the  Common- 
wealth, I  think  I  have  shown  it  to  be  probable  that, 
in  proportion  as  Courts  grow  stronger,  they  first  take 
under  their  control  the  barbarous  practice  of  making 
reprisals  on  a  wrongdoer  by  seizing  his  property,  and 
ultimately  they  absorb  it  into  their  own  procedure. 
Now,  the  Irish  Law  of  Distress  belongs  in  one  respect 
to  a  very  early  stage  in  this  course  of  development, 
since  it  is  even  more  completely  extrajudicial  than 
is  that  fragment  of  the  primitive  barbarous  remedy 
which  has  survived  among  ourselves.  On  the  other 
hand,  there  are  several  particulars  in  which  it  is  not 
more  but  distinctly  less  archaic  than  the  English 
Common  law.  The  '  Notice '  to  the  defendant,  for 
which  it  provides — the  '  Stay,'  or  temporary  retention 
of  the  goods  by  the  owner,  subject  to  a  lien — the  wit- 
nesses who  have  to  be  present,  and  the  skilled  legal  ad- 
viser who  has  to  attend  throughout  the  proceedings — 
belong  to  a  range  of  ideas  greatly  more  advanced  than 
thrvt  under  which  all  these  precautions  are  dispensed 


LECT.  X.    EELATIVE   ANTIQUITY  OP   IRISH  DISTRESS.  291 

with.  Even  stronger  evidence  of  maturity  is  furnished 
by  the  almost  inconceivable  multitude  of  rules  and 
distinctions  which  the  Senchus  Mor  applies  to  every 
part  of  the  proceedings ;  and  our  own  experience  shows 
that  the  most  remarkable  feature  of  the  old  Irish 
law,  the  forfeiture  of  the  property  taken  in  distress 
when  the  original  debt  and  the  expenses  of  custody 
come  up  to  its  full  value,  has  its  place  among  the 
latest  improvements  in  jurisprudence. 

Whatever,  then,  be  the  truth  as  to  the  Ireland  of 
the  golden  age,  these  characteristics  of  the  Irish  Law  of 
Distress  leave  on  my  mind  a  very  distinct  impression 
that  it  was  brought  to  the  shape  in  which  we  find  it 
amid  a  society  in  which  the  action  of  Courts  of  Jus- 
tice was  feeble  and  intermittent.  It  says  much  for 
the  spirit  of  equity  and  reasonableness  which  animated 
the  Brehon  lawyers  who  gave  it  its  form,  and  much 
also  for  their  ingenuity,  but  suggests  that  they  relied 
little  on  the  assistance  of  Courts  and  directed  their 
efforts  to  making  the  most  of  a  remedy  which  was 
almost  wholly  extrajudicial.  The  comparison  of  the 
Teutonic  laws  shows  that  they  had  a  basis  of  Aryan 
custom  to  work  upon;  but,  while  in  other  communities 
the  superstructure  on  this  foundation  was  the  work 
of  Courts  ever  feeling  themselves  stronger,  in  Ireland 
it  seems  to  have  been  the  work  of  lawyers  dependent 
in  the  main  for  the  usefulness  of  their  labours  on 
popular  respect  for  their  order.  I  do  not  affect  to 

v  2 


202  IRISH   AND   ENGLISH  DISTRESS.  LECT.  x. 

Bay  how  the  ancient  law  of  Ireland  is  tc  be  fitted  to 
the  ancient  history.  It  may  be  that  the  picture  of 
judicial  organisation  found  in  some  law-tracts  is, 
like  the  description  of  private  law  found  in  others, 
rather  a  representation  of  what  ought  to  be  than  of 
what  is  or  has  been.  It  may  be  also  that  the  law 
laid  down  in  the  Senchus  Mor  is  of  much  later  date 
than  the  compilers  of  that  tract  pretend,  and  that 
therefore  it  received  its  shape  in  times  of  disturb- 
ance and  confusion.  But  I  cannot  believe  that  it  ever 
synchronised  with  a  period  of  judicial  activity  and 
efficiency. 

From  what  I  have  said  I  think  you  will  have 
collected  the  chief  points  of  difference  between  the 
Irish  Law  of  Distress,  as  laid  down  in  the  Senchus 
Mor,  and  the  English  Common  Law  of  Distress,  as  de- 
clared by  the  earliest  authorities  which  our  Courts 
recognise.  Both  had  the  same  origin,  but  the  Irish 
distraint  was  an  universal,  highly  developed  proceed- 
ing employed  in  enforcing  all  kinds  of  demands, 
while  the  corresponding  English  remedy,  though 
much  less  carefully  guarded  by  express  rules,  was 
confined  to  a  very  limited  and  special  class  of  cases. 
I  have  a  melancholy  reason  for  calling  your  attention 
to  the  contrast.  Edmund  Spenser  has  spoken  of  it, 
in  his  '  View  of  the  State  of  Ireland,'  and  here  is  the 
passage : — 

*  There  are  one  or  two  statutes  which  make  the 


LBCT.  x.    SPENSER  S  CRITICISM  ON  LAW  OF  DISTRESS.  293 

wrongful  distraining  of  any  man's  goods  against  the 
forme  of  Common  Law  to  be  fellony.  The  which 
statutes  seeme  surely  to  have  been  at  first  meant  for 
the  good  of  the  realme,  and  for  restrayning  of  a  foul 
abuse,  which  then  reigned  commonly  among  that 
people,  and  yet  is  not  altogether  laide;  that,  when 
anyone  was  indebted  to  another,  he  would  first  de- 
mand his  debt,  and,  if  he  were  not  paid,  he  would 
straight  go  and  take  a  distress  of  his  goods  and 
cattell,  where  he  could  find  them  to  the  value;  which 
he  would  keep  till  he  were  satisfied ;  and  this  the  simple 
churl  (as  they  call  him)  doth  commonly  use  to  doe 
yet  through  ignorance  of  his  misdoing,  or  evil  use 
that  hath  long  settled  among  them.  But  this,  though 
it  be  sure  most  unlawful,  yet  surely  me  seems  it  is 
too  hard  to  make  it  death,  since  there  is  no  purpose 
in  the  party  to  steal  the  other's  goods,  or  to  conceal  the 
distress,  but  he  doeth  it  openly  for  the  most  part  before 
witnesses.  And  again  the  same  statutes  are  so  slackly 
penned  (besides  there  is  one  so  un sensibly  contryved 
that  it  scarcely  carryeth  any  reason  in  it)  that  they 
are  often  and  very  easily  wrested  to  the  fraud e  of 
the  subject,  as  if  one  going  to  distrayne  upon  his  o\vn 
land  or  tenement,  where  lawfully  he  may,  yet  if  in 
doing  thereof  he  transgresse  the  least  point  of  the 
Common  Law,  he  straight  committeth  fellony.  Or 
if  one  by  any  other  occasion  take  any  thing  from 
another,  as  boyes  sometimes  cap  one  another,  the 
same  is  straight  fellony.  This  is  a  very  hard  law.' 


294  WRONGFUL  DISTRESS   A   CAPITAL   FELONY.    LRCT.  x. 

Spenser  goes  on,  in  a  passage  which  I  need  not 
quote  in  full,  to  account  for  these  statutes  by  a 
special  provision  in  the  charters  of  most  of  the  Anglo- 
Irish  corporate  towns.  The  English  law  had  not 
currency,  he  tells  us,  beyond  the  walls,  and  the  bur- 
gesses had  the  power  conferred  on  them  of  distraining, 
the  goods  of  any  Irishman  staying  in  the  town  or 
passing  through  it,  for  any  debt  whatsoever.  He 
suggests  that  the  Irish  population  outside  was  led  in 
this  way  to  suppose  it  lawful  to'  distrain  the  property 
of  the  townspeople.  The  explanation,  if  true,  would 
be  sad  enough,  but  we  know  that  it  cannot  convey 
the  whole  truth,  and  the  real  story  is  still  sadder. 
The  Irish  used  the  remedy  of  distress  because  they 
knew  no  other  remedy,  and  the  English  made  it  a 
capital  felony  in  an  Irishman  to  follow  the  only  law 
with  which  he  was  acquainted.  Nay,  those  very  sub- 
tleties of  old  English  law  which,  as  Blackstone  says, 
made  the  taking  of  distress  '  a  hazardous  sort  of  pro- 
ceeding '  to  the  civil  distrainor,  might  bring  an  Irish- 
man to  the  gallows,  if  in  conscientiously  attempting 
to  carry  out  the  foreign  law  he  feJl  into  the  smallest 
mistake.  It  is  some  small  consolation  to  be  able,  as 
one  result  of  the  inquiries  we  have  been  prosecuting, 
to  put  aside  as  worthless  the  easy  justification  of 
those  who  pass  over  these  cruelties  as  part  of  the 
inevitable  struggle  between  men  of  different  races. 
Both  the  Irish  law,  which  it  was  a  capital  crime  to 


IECT.  x.  THEORIES  CONCERNING   DISTRESS.  2€G 

obey,  and  the  English  law,  which  it  was  a  capital 
crime  to  blunder  in  obeying,  were  undoubtedly  de- 
scended from  the  same  body  of  usage  once  univer- 
sally practised  by  the  forefathers  of  both  Saxon  and 
Celt. 

Among  the  writers  who  have  recognised  the  strong 
affinities  connecting  the  English  and  Irish  Law  of 
Distress,  I  find  it  difficult  to  distinguish  between 
those  who  believe  in  the  direct  derivation  of  the 
English  law  from  pre-existing  Celtic  customs  com- 
mon to  Britain  and  Ireland,  and  those  who  see  a 
sufficient  explanation  of  the  resemblances  between 
the  two  sets  of  rules  in  then'  common  parentage.  I 
am  not  at  all  prepared  to  deny  that  recent  researches, 
and  particularly  those  into  old  French  customary 
law,  render  it  easier  to  believe  than  it  once  was  that 
portions  of  primitive  or  aboriginal  custom  sur- 
vive the  most  desolating  conquests.  Bat  I  need 
scarcely  say  that  the  hypothesis  of  the  direct  descent 
of  any  considerable  brunch  of  English  law  from 
British  usage  is  beset  by  extraordinary  difficulties, 
of  which  not  the  least  is  the  curiously  strong  case 
which  may  also  be  made  out  for  the  purely  Roman 
origin  of  a  good  many  institutions  and  rules  which 
we  are  used  to  consider  purely  English  and  Germanic. 
On  this  last  point  a  very  interesting  little  volume, 
which  has  attracted  too  little  notice,  Mr.  Coote's 
1  Neglected  Fact  in  English  History,'  may  be  read 


296  DISTRESS   AN  AETAN   CUSTOM.  LECT.  X 

with  advantage,  and  should  be  compared  with  the 
reply  to  its  arguments,  on  the  whole  a  successful 
one,  which  Mr.  Freeman  published  in  '  Macmillan's 
Magazine '  for  July,  1870.  The  true  rival  of  all 
these  theories  of  the  derivation  of  one  body  of  custom 
from  another  is,  of  course,  the  theory  of  the  common 
descent  of  all  from  an  original  basis  of  usage  which 
we  must,  provisionally  at  all  events,  call  Aryan.  Con- 
fining ourselves  to  the  practice  which  we  have  been 
investigating,  the  remedy  for  supposed  wrong  by 
distress,  if  there  could  be  a  doubt  of  its  being  a 
legacy  from  the  primitive  Aryan  usages,  it  would  be 
removed  by  the  remarkable  detail  which  connects  the 
Irish  with  the  Hindoo  law.  The  Irish  rules  of  dis- 
traint very  strongly  resemble  the  English  rules,  less 
strongly  resemble  the  Continental  Teutonic  rules, 
but  they  include  one  rule  not  found  in  any  Teutonic 
Code,  almost  unintelligible  in  the  Irish  system,  but 
known  to  govern  conduct  even  at  this  hour  all  over 
the  East,  where  its  meaning  is  perfectly  clear.  This 
is  the  rule  that  a  creditor  who  requires  payment  from 
a  debtor  of  higher  rank  than  himself  shall  '  fast  upon 
him.'  What  possible  explanation  will  cover  all  the 
fact  except  that  the  primitive  Aryans  bequeathed  the 
remedy  of  distress  to  the  communities  which  sprang 
from  them,  and  that  varieties  of  detail  have  been  pro- 
duced by  what  Dr.  Sullivan,  in  his  Introduction,  has 
happily  called  dynamical  influences? 


LECT.  x.  INDIAN   FOEM   OF   DISTRESS.  297 

Here  is  the  leading  provision  of  the  Senchis  Mor 
on  the  subject  (i.  113) : — 

*  Notice  precedes  every  distress  in  the  case  of  the 
inferior  grades  except  it  be  by  persons  of  distinction 
or  upon  persons  of  distinction.  Fasting  precedes 
distress  in  their  case.  He  who  does  not  give  a  pledge 
to  fasting  is  an  evader  of  all ;  he  who  disregards  all 
things  shall  not  be  paid  by  God  or  man.' 

Mr.  Whitley  Stokes  was  the  first,  I  believe,  to 
point  out  that  the  institution  here  referred  to  was 
identical  with  a  practice  diffused  over  the  whole  East, 
and  called  by  the  Hindoos  l  sitting  dharna.'  I  will 
presently  read  you  a  passage  in  which  the  proceed- 
ing is  described  as  it  was  found  in  India  before  the 
British  Government,  which  has  always  regarded  it  as 
an  abuse,  had  gone  far  in  its  efforts  to  suppress  it. 
But  perhaps  the  most  striking  examples  of  the  ancient 
custom  are  to  be  found  at  this  day  in  Persia,  where 
(I  am  told)  a  man  intending  to  enforce  payment  of  a 
demand  by  fasting  begins  by  sowing  some  barley  at 
his  debtor's  door  and  sitting  down  in  the  middle. 
The  symbolism  is  plain  enough.  The  creditor  means 
that  he  will  stay  where  he  is  without  food,  either 
until  he  is  paid  or  until  the  barley-seed  grows  up  and 
gives  him  bread  to  eat. 

The  corresponding  Indian  practice  is  known,  I 
before  stated,  as  '  sitting  dharna ' — dharna,  according 
to  the  better  opinion,  being  exactly  equivalent  to  the 


298  SITTING   DHAKNA.  tEOT.  X 


Roman  'capio,'  and  meaning  'detention'  or  'arrest.' 
Among  the  methods  of  enforcing  payment  of  a  debt 
described  in  the  collection  of  rules  attributed  to  the 
semi-divine  legislator,  Manu  (viii.  49),  is  one  which 
Sir  William  Jones  renders  '  the  mediation  of  friends  ;  ' 
but  more  recent  Sanscrit  scholars  assert  that  the  ex- 
pression of  the  original  text  signifies  '  dharna.'  And 
in  the  Vyavahara  Mayukha,  a  Brahminical  law-book 
of  much  authority,  Brihaspiti,  a  juridical  writer  some- 
times classed  with  Manu,  is  cited  as  enumerating, 
among  the  lawful  modes  of  compulsion  by  which  the 
debtor  can  be  made  to  pay,  '  confining  his  wife,  his 
son,  or  his  cattle,  or  watching  constantly  at  his  door.' 
This  remarkable  passage  not  only  connects  Hindoo 
law  with  Irish  law  through  the  reference  to  '  watch- 
ing constantly  at  the  door,'  but  it  connects  it  also 
with  the  Teutonic,  and  among  them  with  the  Eng- 
lish bodies  of  custom,  by  speaking  of  the  distraint 
of  cattle  as  a  method  of  enforcing  a  demand.  We 
have  not  in  the  Western  world,  so  far  as  I  am  aware, 
any  example  of  so  strong  a  form  of  distress  as  seizing 
a  man's  wife  or  children,  but  it  is  somewhat  curious 
that  we  have  evidence  of  its  having  been  common  in 
ancient  Ireland  to  give  a  son  as  a  pledge  to  the  cre- 
ditor for  the  purpose  of  releasing  the  distrained 
property. 

Lord  Teignmouth  has  left  us  a  description  (in 
Forbes'  '  Oriental  Memoirs,'  ii.  25)  of  the  form  which 


LKCT.  x.  SHOEE  S   ACCOUNT   OF   DHARNA.  299 

the  '  watching  constantly  at  the  door  of  Brihaspiti 
had  assumed  in  British  India  before  the  end  of  the 
last  century :  'The  inviolability  of  the  Brahmin  is  a 
fixed  principle  with  the  Hindoos,  and  to  deprive  him 
of  life,  either  by  direct  violence  or  by  causing  his 
death  in  any  mode,  is  a  crime  which  admits  of  no 
expiation.  To  this  principle  may  be  traced  the  prac- 
tice called  dharna,  which  may  be  translated  caption 
or  arrest.  It  is  used  by  the  Brahmins  to  gain  a 
point  which  cannot  be  accomplished  by  any  other 
means,  and  the  process  is  as  follows :  The  Brahmin 
who  adopts  this  expedient  for  the  purpose  mentioned 
proceeds  to  the  door  or  house  of  the  person  against 
whom  it  is  directed,  or  wherever  he  may  most  con- 
veniently arrest  him ;  he  then  sits  down  in  dharna 
with  poison  or  a  poignard  or  some  other  instrument 
of  suicide  in  his  hand,  and  threatening  to  use  it  if  his 
adversary  should  attempt  to  molest  or  pass  him,  he 
thus  completely  arrests  him.  In  this  situation  the 
Brahmin  fasts,  and  by  the  rigour  of  the  etiquette  the 
unfortunate  object  of  his  arrest  ought  to  fast  also, 
and  thus  they  both  remain  till  the  institutor  of  the 
dharna  obtains  satisfaction.  In  this,  as  he  seldom 
makes  the  attempt  without  the  resolution  to  perse- 
vere, he  rarely  fails  ;  for  if  the  party  thus  arrested 
were  to  suffer  the  Brahmin  sitting  in  dharna  to 
perish  by  hunger,  the  sin  would  for  ever  lie  upon 
his  head.  This  practice  has  been  less  frequent  of 


300  SANCTIONS    OF   DIIAIINA.  MCT.  x. 

late  years,  since  the  institution  of  the  Court  of  Jus- 
tice at  Benares  in  1793  ;  but  the  interference  of  toe 
Court  and  even  of  the  Resident  has  occasionally 
proved  insufficient  to  check  it.' 

You  will  observe  that  the  old  Brahminical  writer 
merely  speaks  of  confining  a  man  to  his  house  by 
4  watching  constantly  at  the  door '  as  one  among 
several  modes  of  extorting  satisfaction.  He  classes 
it  with  forms  of  distraint  more  intelligible  to  us — the 
seizure  of  the  debtor's  cattle,  of  his  wife,  or  of  his 
child.  Though  the  ancient  rule  has  not  descended  to 
us  along  with  its  original  context,  we  need  not  doubt 
that  even  in  the  earliest  times  it  was  enforced  by  a 
supernatural  sanction,  since  every  violation  of  the 
Brahminical  Code  was  regarded  by  its  authors  not 
only  as  a  civil  offence  but  as  a  sin.  Thus  a  Brahmin 
might  quite  well  be  conceived  as  saying  with  the 
writer  in  the  Senchus  Mor,  '  He  who  does  not  give  a 
pledge  to  fasting  is  an  evader  of  all ;  he  who  dis- 
regards all  things  shall  not  be  paid  by  God  or  man.' 
Many  centuries  then  elapse,  which  it  would  be  vain 
to  calculate,  and  almost  in  our  own  day  we  find  the 
ancient  usage  practised  in  India,  but  with  modifica- 
tions corresponding  to  a  great  deal  of  change  which 
is  suspected  to  have  occurred  in  Hindoo  theology. 
The  indefinite  supernatural  penalty  has  become  the 
definite  supernatural  penalty  incurred  by  destroying 
life,  and  particularly  human  life.  The  creditor  not 


LECT.  x.  MODERN   PROHIBITION   OF   DHARNA.  301 

only  'watches  at  the  door,'  but  kills  himself  by 
poison  or  dagger  if  the  arrest  is  broken,  or  by  starva- 
tion if  payment  is  too  long  delayed.  Finally,  we 
have  the  practice  described  by  Lord  Teignmouth  as 
one  peculiarly  or  exclusively  resorted  to  by  Brah- 
mins. The  sanctity  of  Brahmmical  life  has  now  in 
fact  pretty  much  taken,  in  Hindoo  idea,  the  place  once 
occupied  by  the  sanctity  of  human  life,  and  '  sitting 
dharna,'  when  the  English  law  first  endeavoured  to 
suppress  it,  was  understood  to  be  a  special  mode  of 
oppression  practised  by  Brahmins  for  a  consideration 
in  money.  This  is  the  view  taken  of  it  by  the 
Indian  Penal  Code,  which  condemns  it  in  the  follow- 
ing terms  (s.  508): — 

4  Whoever  voluntarily  causes  .  .  .  any  person  to 
do  anything  which  that  person  is  not  legally  bound 
to  do  ...  by  inducing  .  .  .  that  person  to  believe 
that  he  ...  will  become  by  some  act  of  the  offender 
an  object  of  Divine  displeasure,  if  he  does  not  do  the 
thing  which  it  is  the  object  of  the  offender  to  cause 
him  to  do  .  .  .  shall  be  punished  with  imprisonment, 

&c; 

It  seems  to  me  that  a  reasonable  explanation  may 
be  given  of  the  origin  of  these  practices  which  now 
seem  so  strange.  Let  us  not  forget  that  all  forms  of 
Distress,  the  seizure  of  wife,  child,  or  cattle,  even 
when  wholly  unregulated  by  law,  were  improvements 
on  older  custom.  The  primitive  proceeding  was 


802  KAFIR   LEGAL   PROCEDURE,  LECT.  x. 

undoubtedly  the  unceremonious,  unannounced,  attack 
of  the  tribe  or  the  man  stung  by  injury  on  the  tribe 
or  the  man  who  had  inflicted  it.  Any  expedient  by 
which  sudden  plunder  or  slaughter  was  adjourned 
or  prevented  was  an  advantage  even  to  barbarous 
society.  Thus,  it  was  a  gain  to  mankind  as  a  whole 
when  its  priests  and  leaders  began  to  encourage  the 
seizure  of  property  or  family,  not  for  the  purpose  of 
permanent  appropriation,  but  with  a  view  to  what  we 
should  now  not  hesitate  to  call  extortion.  Similarly, 
it  was  a  step  forwards  when  men  learned  to  pause 
before  attacking  instead  of  attacking  at  once.  We 
are  told,  in  the  Compendium  of  Kafir  Laws  and 
Customs  published  by  Mr.  Dugmore  and  other  mis- 
sionaries (p.  38),  that  the  regular  procedure  of  a 
Kafir  law- suit  simulates  an  expedition  in  force  of 
the  plaintiff  and  his  friends  against  the  village  to 
which  the  defendant  belongs.  '  On  their  arrival  they 
sit  down  together  in  some  conspicuous  position  and 
await  quietly  the  result  of  their  presence.  This 
...  is  the  signal  for  mustering  all  the  adult  male 
residents  that  are  forthcoming.  These  accordingly 
assemble  and  also  sit  down  within  conversing  dis- 
tance.' After  long  silence  a  conversation  ensues, 
and  the  proceeding,  which  is  a  perfectly  peaceable 
one,  is  continued  by  a  long  series  of  technical  for- 
malities arid  intricate  pleadings.  This  silent  pause  of 


LECT.  x.  FEUD   LAW   OF  ALFRED.  303 

the  attacking  party  is  an  early  form  of  Notice,  in 
itself  one  of  the  most  valuable  of  institutions  ;  and 
with  it  is  connected  another  primitive  contrivance, 
shutting  a  man  up  in  his  house  till  he  gives  satisfac- 
tion, instead  of  setting  on  him  at  once.  A  very 
striking  illustration  of  it  is  found  in  a  law  of  Alfred, 
familiar  to  historical  scholars  (Kemble,  '  Saxons,'  i. 
272;  Thorpe,  'Ancient  Laws,'  i.  91):— 

*  Let  the  man  who  knows  his  foe  to  be  home- 
sitting  fight  not  before  he  have  demanded  justice  of 
him.  If  he  have  power  to  beset  his  foe  and  besiege 
him  in  his  house,  let  him  keep  him  there  for  seven 
days  but  not  attack  him  if  he  will  remain  indoors. 
If  then,  after  seven  days,  he  be  willing  to  surrender 
and  give  up  his  weapons,  let  him  be  kept  safe  for 
thirty  days,  and  let  notice  be  given  to  his  kinsmen 
and  friends.  But  if  the  plaintiff  have  not  power  of 
his  own,  let  him  ride  to  the  Ealdorman,  and,  if  the 
Ealdorman  will  not  aid  him,  let  him  ride  to  the  King 
before  he  fights.'  The  passage  ends  with  a  provision 
of  which  the  spirit,  strange  to  say,  survives  in  the 
modern  Code  making  the  loudest  claim  to  civilised 
principle,  the  Code  Napoleon  (Code  Penal,  s.  324), 
to  the  effect  that  if  the  man  who  is  homesitting  be 
really  shut  up  in  his  house  with  the  complainant's 
wife,  daughter,  or  sister,  he  may  be  attacked  and 
killed  without  ceremony. 

The  object  of  the  Law  of  Alfred  is  plainly  the 


80-i  DHARXA   IN   NATIVE   INDIAN   STATES.          LECT.  X. 

same  with  that  aimed  at  by  the  ancient  rule  of 
Brihaspiti.  The  man  who,  if  nature  had  her .  way, 
would  be  slain  at  once,  is  shut  up  in  his  house  but 
left  otherwise  unharmed  till  he  or  his  kinsmen  pay 
the  debt  or  compound  for  the  money.  The  English 
rule  is  to  be  enforced  by  the  civil  power,  the  Ealdor- 
man  or  the  King ;  the  Hindoo  Brahminical  rule  by 
the  fear  of  punishment  in  another  world.  The  Irish 
law-tract  retains  the  Brahminical  rule  as  an  alterna- 
tive in  certain  cases  to  Notice.  But  an  institution 
which  was  perfectly  intelligible  in  a  society  which 
included  an  order  of  lawyers  who  were  also  priests 
has  lost  all  meaning  when  this  society  has  been 
introduced  by  Christianity  to  a  wholly  new  set  of 
religious  ideas. 

The  course  of  our  enquiry  has  led  us  backwards 
and  forwards  between  the  extreme  Easterly  and  the 
extreme  Westerly  branches  of  the  Aryan  race.  Let 
me  now  add  one  word  to  connect  the  Eastern  usage 
with  the  most  ancient  law  of  the  community  which 
once  occupied  with  its  government  nearly  the  whole 
space  between  the  two.  '  Sitting  dharna,'  placed 
nnder  the  ban  of  British  law,  chiefly  survives  in 
British  India  in  an  exaggerated  air  of  suffering  worn 
by  the  creditor  who  comes  to  ask  a  debtor  of  higher 
rank  for  payment,  and  who  is  told  to  wait.  But  it  is 
still  common  in  the  Native  Indian  States,  and  there 
it  is  pre-eminently  an  expedient  resorted  to  by  soldiers 


.          DHARNA    IN   NATIVE    INDIAN   STATES.  3ftS 

to  obtain  arrears  of  pay.  You  will  remember  that 
the  '  pignoris  capio '  of  the  Romans  is  stated  by  Gaius 
to  have  survived  as  a  remedy  in  two  classes  of  cases, 
one  of  them  being  the  default  of  a  military  pay- 
master. 


SETTLED  PE.OPERTY  JF  MARRIED  WOMEN.     LKCT.  XT, 


LECTURE  XL 

THE   EARLY    HISTORY    OF    THE    SETTLED   PROPERTY    OB 
MARRIED   WOMEN. 

THE  subject  on  which  I  am  about  to  speak  may  per- 
haps convey  one  lesson.  It  may  serve  as  a  caution 
against  the  lax  employment  of  the  words  '  ancient ' 
and  *  modern.'  There  are  few  persons,  I  suppose,  who, 
approaching  the  Settled  Property  of  Married  Women 
without  previous  knowledge  of  its  history,  would  not 
pronounce  it  one  of  the  most  modern  of  subjects.  It 
has  given  rise  to  vehement  controversy  in  our  own 
day;  some  of  the  questions  which  it  suggests  are  not 
yet  solved ;  and  there  are  many  here,  I  dare  say,  who 
believe  that  they  remember  the  first  dawn  of  sound 
ideas  on  these  questions.  Yet,  as  a  matter  of  fact, 
the  discussion  of  the  settled  property  of  married 
women  is  a  very  old  discussion.  I  do  not  indeed  say, 
considering  the  vast  antiquity  now  claimed  for  the 
human  race,  that  our  very  first  forefathers  troubled 
themselves  about  the  matter;  but  nothing  can  be 
more  certain  than  that  very  soon  after  those  divisions 
of  mankind  which  were  destined  to  ultimate  greatness 


user.  xi.  ROMAN  AND   HINDOO   LAW.  807 

are  seen  in  possession  of  the  institution  which  was 
the  one  condition  of  their  progress  to  civilisation — 
the  Family — they  are  discerned  grappling  with  the 
very  same  problem,  no  doubt  in  an  early  form,  which 
we  ourselves  have  hardly  yet  succeeded  in  solving. 
This  assertion,  I  may  observe,  is  less  incredible  to  a 
Frenchman,  or  indeed  to  a  citizen  of  any  Continental 
State,  than  it  is  possibly  to  an  Englishman.  The  law 
of  the  Continent  on  the  proprietary  relations  of  hus- 
band and  wife  is  in  the  main  Roman  law,  very  slightly 
transmuted ;  and  through  the  institutions  of  the  Ro- 
mans the  history  of  this  branch  of  law  may  be  traced 
to  the  earliest  institutions  of  so  much  of  the  human 
race  as  has  proved  capable  of  civilisation. 

The  Roman  and  Hindoo  systems  of  law  from 
which  I  propose  to  illustrate  my  subject  are  very 
far  indeed  from  being  the  only  sources  from  which 
information  can  be  gathered  concerning  the  infancy 
of  mankind,  or  even  concerning  the  Aryan  race 
of  men.  But  the  evidence  supplied  by  each  of 
them  is  highly  authentic,  and,  while  both  of  them 
run  back  to  what  may  fairly  be  called  a  vast  an- 
tiquity, they  both  assume  at  their  starting-point  the 
existence  of  the  institution,  by  no  means  apparently 
universal  among  savage  men,  out  of  which,  as  I  said, 
all  civilisation  has  grown — the  Family.  I  need 
scarcely  add  that,  even  for  historical  purposes,  theii 
value  is  very  unequal. 

zS 


808  ROMAN  LAW.  user.  xi. 

There  is  no  history  so  long,  so  continuous,  and 
so  authentic  as  that  of  the  Roman  Law ;  and  yet  it  is 
not  a  little  remarkable  that  till  about  half  a  century 
ago  it  was  systematically  treated,  except  by  a  small 
minority  of  jurists,  as  if  it  had  no  history  at  all.  This 
was  a  consequence  of  its  great  juridical  perfection. 
Let  me  pause  to  observe  that,  considering  the  time 
and  pains  spent  in  acquiring  the  Latin  language, 
it  is  much  to  be  regretted  that  so  little  is  known 
of  the  chief  branch  of  Latin  literature.  For  it  is 
really  so  expressed,  and  so  put  together,  as  to 
deserve  the  name  of  literature.  Moreover,  it  was 
the  only  literature  of  the  Romans  which  has  any 
claim  to  originality;  it  was  the  only  part  of  their 
literature  in  which  the  Romans  themselves  took 
any  strong  interest;  and  it  is  the  one  part  which 
has  profoundly  influenced  modern  thought.  One 
result,  however,  of  its  symmetry  and  lucidity  was 
that  it  was  long  regarded  as  a  birth  of  pure  in- 
tellect, produced,  so  to  speak,  at  a  single  effort.  Those 
who  attempted  to  construct  a  history  for  it  were  few, 
and  not  of  the  highest  credit.  But  it  happened  that 
in  1816,  the  great  German  historian,  Niebuhr,  travel- 
ling in  Italy,  had  his  attention  attracted  at  Verona 
to  a  manuscript  of  one  of  the  Fathers,  under  the  let- 
ters of  which  ancient  writing  appeared.  This  manu- 
script, when  deciphered,  proved  to  be  a  nearly  perfect 
copy  of  an  educational  work,  written  in  the  second 


MCI.  xi.  HINDOO   LAW.  809 

century  of  our  era,  for  young  Roman  students  of  law, 
by  one  of  the  most  famous  of  Roman  lawyers,  Gaius 
or  Caius.  At  that  period  Roman  jurisprudence  re- 
tained enough  of  the  traces  of  its  most  ancient  state 
for  it  to  be  necessary  that  they  should  be  explained 
to  young  readers  by  the  author  of  such  a  treatise  ; 
and  it  thus  became  possible  to  reconstruct,  from  the 
book  of  Gaius,  the  whole  past  history  of  Roman  law 
with  some  completeness.  Certainly,  without  Nie- 
buhr's  discovery  the  subject  of  this  lecture  could 
never  have  been  understood,  or  its  original  outline 
restored. 

Hindoo  law,  which  I  have  placed  by  the  side  of 
Roman  law,  calls  assuredly  for  no  eulogy.  It  is  full 
of  monstrous  iniquities,  and  has  been  perverted  in  all 
directions  by  priestly  influence.  But  then  a  great 
deal  of  it  is  undoubtedly  of  prodigious  antiquity,  and, 
what  is  more  important,  we  can  see  this  ancient  law 
in  operation  before  our  eyes.  British  legislation  has 
corrected  some  of  its  excesses,  but  its  principles  are 
untouched,  and  are  still  left  to  produce  some  of  their 
results.  French  law,  as  I  said,  is  Roman  law  a  little 
altered,  but  then  it  is  the  Roman  law  in  its  matured, 
developed,  and  refined  condition,  and  the  ancient  in- 
stitutions of  the  Romans  are  only  seen  through  it 
dimly.  But  some  of  the  institutions  which  the 
Romans  and  Hindoos  once  had  in  common  may  be 


310  THE   PATRIARCHAL   FAMILY.  LECT.  XI. 

seen  actually  flourishing  in  India,  under  the  protec- 
tion of  English  Courts  of  Justice. 

The  two  societies,  Roman  and  Hindoo,  which  I 
take  up  for  examination,  with  the  view  of  determining 
some  of  their  earliest  ideas  concerning  the  property 
of  women,  are  seen  to  be  formed  at  what  for  practical 
purposes  is  the  earliest  stage  of  their  history,  by  the 
multiplication  of  a  particular  unit  or  group,  the  Pa- 
triarchal Family.  There  has  been  much  speculation 
of  late  among  writers  belonging  to  the  school  of  so- 
called  pre-historic  inquiry  as  to  the  place  in  the  his- 
tory of  human  society  to  which  this  peculiar  group, 
the  Patriarchal  Family,  is  entitled.  Whether,  how- 
ever, it  has  existed  universally  from  all  time — -whether 
it  has  existed  from  all  time  only  in  certain  races — 
or  whether  in  the  races  among  whose  institutions  it 
appears,  it  has  been  formed  by  slow  and  gradual 
development — it  has,  everywhere,  where  we  find  it, 
the  same  character  and  composition.  The  group 
consists  of  animate  and  inanimate  property,  of  wife, 
children,  slaves,  land,  and  goods,  all  held  together  by 
subjection  to  the  despotic  authority  of  the  eldest  male 
of  the  eldest  ascending  line,  the  father,  grandfather, 
or  even  more  remote  ancestor.  The  force  which 
binds  the  group  together  is  Power.  A  child  adopted 
into  the  Patriarchal  family  belongs  to  it  as  perfectly 
as  the  child  naturally  born  into  it,  and  a  child  who 
severs  his  connection  with  it  is  lost  to  it  alto- 


1ECT.  D.  DECAY   OF   THE   FAMILY.  311 

gether.  All  the  larger  groups  which  make  up  the 
primitive  societies  in  which  the  Patriarchal  family 
occurs,  are  seen  to  be  multiplications  of  it,  and  to 
be,  in  fact,  themselves  more  or  less  formed  on  its 
model. 

But,  when  first  we  view  the  Patriarchal  Family 
through  perfectly  trustworthy  evidence,  it  is  already 
in  a  state  of  decay.  The  emancipation  or  enfranchise- 
ment of  male  children  from  parental  power  by  the 
parents'  voluntary  act  has  become  a  recognised  usage, 
and  is  one  among  several  practices  which  testify  a 
relaxation  of  the  stricter  ideas  of  a  more  remote  anti- 
quity. Confining  our  attention  to  women,  we  find 
that  they  have  begun  to  inherit  a  share  of  the  pro- 
perty of  the  family  concurrently  with  their  male 
relatives  ;  but  their  share  appears,  fi*om  several  indi- 
cations, to  have  been  smaller,  and  they  are  still 
controlled  both  in  the  enjoyment  of  it  and  in  the 
disposal.  Here,  however,  we  come  upon  the  first 
trace  of  a  distinction  which  runs  through  all  legal 
history.  Unmarried  women,  originally  in  no  differ- 
ent position  from  married  women,  acquire  at  first  a 
much  higher  degree  of  proprietary  independence.  The 
unmarried  woman  is  for  life  under  the  guardianship 
of  her  male  relatives,  whose  primitive  duty  was  mani- 
festly to  prevent  her  alienating  or  wasting  her  posses- 
sions, and  to  secure  the  ultimate  reversion  of  these 


312  EARLY  ROMAN  MARRIAGE.  LECT.  xi. 

possessions  to  the  family  to  whose  domain  those  pos- 
sessions had  belonged.  But  the  powers  of  the  guar- 
dians are  undergoing  slow  dissolution  through  the  two 
great  sapping  agencies  of  jurisprudence,  Legal  Fictions 
and  Equity.  To  those  who  are  alive  to  the  permanence 
of  certain  legal  phenomena  there  is  no  more  interest- 
ing passage  in  ancient  law  than  that  in  which  the  old 
lawyer  Gaius  describes  the  curious  forms  with  which 
the  guardian's  powers  were  transferred  to  a  trustee, 
whose  trust  was  to  exercise  them  at  the  pleasure  of 
the  ward.  Meantime,  there  can  be  no  reasonable 
doubt  that  among  the  Romans,  who  alone  supply  us 
with  a  continuous  history  of  this  branch  of  jurispru- 
dence, the  great  majority  of  women  became  by  mar- 
riage, as  all  women  had  originally  become,  the 
daughters  of  their  husbands.  The  Family  was 
based,  less  upon  actual  relationship  than  upon  power, 
and  the  husband  acquired  over  his  wife  the  same  de- 
spotic power  which  the  father  had  over  his  children. 
There  can  be  no  question  that,  in  strict  pursuance  of 
this  conception  of  marriage,  all  the  wife's  property 
passed  at  first  absolutely  to  the  husband,  and  became 
fused  with  the  domain  of  the  new  family;  and  at  this 
point  begins,  in  any  reasonable  sense  of  the  words, 
the  early  history  of  the  property  of  married  women. 
The  first  sign  of  change  is  furnished  by  the  em- 
ployment of  a  peculiar  term  to  indicate  the  relation 
of  husband  to  wife,  as  different  from  the  relation  of 


LECT.  xi.  CHAXGE   IX  TECHNICAL   LANGUAGE.  313 

father  to  child,  or  master  to  slave.  The  term,  a 
famous  one  in  legal  history,  is  manus,  the  Latin  word 
for  *  hand,'  and  the  wife  was  said  convenire  in  manum, 
to  come  under  the  hand  of  her  husband.  I  have 
elsewhere  expressed  a  conjectural  opinion  that  this 
word  manus  or  hand,  was  at  first  the  sole  general 
term  for  patriarchal  power  among  the  Romans,  and 
that  it  became  confined  to  one  form  of  that  power  by 
a  process  of  specialisation  easily  observable  in  the 
history  of  language.  The  allotment  of  particular 
names  to  special  ideas  which  gradually  disengage 
themselves  from  a  general  idea  is  apparently  deter- 
mined by  accident.  We  cannot  give  a  reason,  other 
than  mere  chance,  why  power  over  a  wife  should  have 
retained  the  name  of  manus,  why  power  over  a  child 
should  have  obtained  another  name,  potestas,  why 
power  over  slaves  and  inanimate  property  should  in 
later  times  be  called  dominium.  But,  although  the 
transformation  of  meanings  be  capricious,  the  process 
of  specialisation  is  a  permanent  phenomenon,  in  the 
highest  degree  important  and  worthy  of  observation. 
When  once  this  specialisation  has  in  any  case  been 
effected  I  venture  to  say  that  there  can  be  no  accu- 
rate historical  vision  for  him  who  will  not,  in  mental 
contemplation,  re-combine  the  separated  elements. 
Taking  the  conceptions  which  have  their  root  in 
the  family  relation — what  we  call  property,  what  we 
call  marital  right,  what  we  call  parental  authority, 


314  PRIMITIVE   BLENDING   OF  NOTIONS.        LECT.  xt, 

were  all  originally  blended  in  the  general  conception 
of  patriarchal  power.  If,  leaving  the  Family,  we 
pass  on  to  the  group  which  stands  next  above  it 
in  the  primitive  organisation  of  society — that  com- 
bination of  families,  in  a  larger  aggregate,  for  which 
at  present  I  have  no  better  name  than  Village 
Community — we  find  it  impossible  to  understand 
the  extant  examples  of  it,  unless  we  recognise  that, 
in  the  infancy  of  ideas,  legislative,  judicial,  executive, 
and  administrative  power  are  not  distinguished,  but 
considered  as  one  and  the  same.  There  is  no  distinc- 
tion drawn  in  the  mind  between  passing  a  law,  affirm- 
ing a  rule,  trying  an  offender,  carrying  out  the 
sentence,  or  prescribing  a  set  of  directions  to  a 
communal  functionary.  All  these  are  regarded  as 
exercises  of  an  identical  power  lodged  with  some 
depositary  or  body  of  depositaries.  When  these 
communities  become  blended  in  the  larger  groups 
which  are  conveniently  called  political,  the  re-com- 
bination of  ideas  originally  blended  becomes  infinitely 
more  difficult,  and,  when  successfully  effected,  is 
among  the  greatest  achievements  of  historical  insight. 
But  I  venture  to  say  that,  whether  we  look  to  that 
immortal  system  of  village  communities  which  be- 
came the  Greek  or  Hellenic  world — or  that  famous 
group  of  village-communities  on  the  Tiber,  which, 
grown  into  a  legislating  empire,  has  influenced  the 
destinies  of  mankind  far  more  by  altering  their 


KBCT.  XT  USURPATION  AND   MARRIAGE.  316 

primitive  customs  than  by  conquering  them — or  to 
the  marvellously  complex  societies  to  which  we  be- 
long, and  in  which  the  influence  of  the  primitive 
family  and  village  notions  still  makes  itself  felt  amid 
the  mass  of  modern  thought — still  I  venture  to  say, 
that  one  great  secret  for  understanding  these  collec- 
tions of  men,  is  the  reconstruction  in  the  mind  of 
ancient,  general,  and  blended  ideas  by  the  re -combi- 
nation of  the  modern  special  ideas  which  are  their 
offshoots. 

The  next  stage  in  the  legal  history  of  Roman 
civil  marriage  is  marked  by  the  contrivance,  very 
familiar  to  students  of  Roman  law,  by  which  the 
process  of  '  coming  under  the  hand '  was  dispensed 
with,  and  the  wife  no  longer  became  in  law  her  hus- 
band's daughter.  From  very  early  times  it  would 
appear  to  have  been  possible  to  contract  a  legal  mar- 
riage by  merely  establishing  the  existence  of  conjugal 
society.  But  the  effect  on  the  wife  of  continuous 
conjugal  society  was,  in  old  Roman  law,  precisely  the 
same  as  the  effect  on  a  man  of  continuous  servile  oc- 
cupation in  a  Roman  household.  The  institution  called 
Usucapion,  or  (in  modern  times)  Prescription,  the 
acquisition  of  ownership  by  continuous  possession, 
lay  at  the  root  of  the  ancient  Roman  law,  whether  of 
persons  or  of  things ;  and,  in  the  first  case,  the  wo- 
man became  the  daughter  of  the  chief  of  the  house  ; 
in  the  last  case  the  man  became  his  slave.  The  legal 


316  METHOD   OF  DEFEATING   USUCAPIOX.       LECT.  XL 

result  was  only  not  the  same  in  the  two  cases  because 
the  shades  of  power  had  now  been  discriminated,  and 
paternal  authority  had  become  different  from  the 
lordship  of  the  master  over  the  slave.  In  order, 
however,  that  acquisition  by  Usucapion  might  be 
consummated,  the  possession  must  be  continuous; 
there  was  no  Usucapion  where  the  possession  had 
been  interrupted — where,  to  use  the  technical  phrase 
(which  has  had  rather  a  distinguished  history),  there 
had  been  usurpation,  the  breaking  of  usus  or  enjoy- 
ment. It  was  possible,  therefore,  for  the  wife,  by 
absenting  herself  for  a  definite  period  from  her  hus- 
band's domicile,  to  protect  herself  from  his  acquisition 
of  paternal  power  over  her  person  and  property.  The 
exact  duration  of  the  absence  necesary  to  defeat  the 
Usucapion — three  days  and  three  nights — is  provided 
for  in  the  ancient  Roman  Code,  the  Twelve  Tables, 
and  doubtless  the  appearance  of  such  a  rule  in  so 
early  a  monument  of  legislation  is  not  a  little  re- 
markable. It  is  extremely  likely,  as  several  writers 
on  the  ancient  law  conjectured,  that  the  object  of  the 
provision  was  to  clear  up  a  doubt,  and  to  declare  with 
certainty  what  period  of  absence  was  necessary  to 
legalise  an  existing  practice.  But  it  would  never  do 
to  suppose  that  the  practice  was  common,  or  rapidly 
became  common.  In  this,  as  in  several  other  cases, 
it  is  probable  that  the  want  of  qualification  in  the 
clause  of  the  Twelve  Tables  is  to  be  explained  by 


LBCT.  XI.  NEWER   ROMAX  MAERIAGE.  317 

the  reliance  of  the  legislator  on  custom,  opinion,  or 
religious  feeling  to  prevent  the  abuse  of  his  legis- 
lation. The  wife  who  saved  herself  from  coming 
under  marital  authority  no  doubt  had  the  legal  status 
of  wife,  but  the  Latin  antiquarians  evidently  believed 
that  her  position  was  not  at  first  held  to  be  respec- 
table. By  the  time  of  Gaius,  however,  any  associa- 
tion of  imperfect  respectability  with  the  newer  form 
of  marriage  was  decaying  or  had  perished ;  and,  in 
fact,  we  know  that  marriage,  '  without  coming  under 
the  hand/  became  the  ordinary  Roman  marriage,  and 
that  the  relation  of  husband  and  wife  became  a 
voluntary  conjugal  society,  terminable  at  the  pleasure 
of  either  party  by  divorce.  It  was  with  the  state  of 
conjugal  relations  thus  produced  that  the  growing 
Christianity  of  the  Roman  world  waged  a  war  ever 
increasing  in  fierceness;  yet  it  remained  to  the  last 
the  basis  of  the  Roman  legal  conception  of  marriage, 
and  to  a  certain  extent  it  even  colours  the  Canon  law, 
founded  though  it  be,  on  the  whole,  on  the  sacra- 
mental view  of  marriage. 

For  our  present  purpose  it  is  necessary  to  regard 
this  newer  marriage  just  when  it  had  superseded  the 
ancient  and  stricter  usages  of  wedlock,  and  just  before 
it  began  to  be  modified  by  the  modern  and  much 
severer  principles  of  the  Christian  community.  For 
at  this  point  in  the  history  of  marriage  we  come  upon 
the  beginnings  of  that  system  of  settling  the  property 


318  PROPERTY  OF  MARRIED   WOMEN.  LEOT.  XI 

of  married  women  which  has  supplied  the  greatest 
part  of  Continental  Europe  with  its  law  of  marriage 
settlement.  It  appears  an  immediate  consequence 
from  thoroughly  ascertained  legal  principles  that,  as 
soon  as  the  wife  ceased  to  pass  by  marriage  into  her 
husband's  family,  and  to  become  in  law  his  daughter, 
her  property  would  no  longer  be  transferred  to  him. 
In  the  earlier  period  of  Roman  law,  this  property, 
present  and  prospective,  would  have  remained  with 
her  own  family,  and,  if  she  was  no  longer  under 
direct  parental  authority,  would  have  been  admin- 
istered by  her  guardians  for  the  behoof  of  her  male 
relatives.  As  we  know,  however,  and  as  I  be- 
fore stated,  the  power  of  guardians  was  gradually 
reduced  to  a  shadow.  The  legal  result  would  seem 
to  have  been  that  the  woman  would  be  placed  in  the 
same  position  as  a  French  wife  at  this  day  under  what 
the  French  Code  calls  the  regime  of  biens  separes,  or 
as  an  English  wife  whose  property  has  been  secured 
to  her  separate  use  by  an  appropriate  marriage  set- 
tlement or  by  the  operation  of  the  new  Married 
Women's  Property  Act.  But,  though  this  was  the 
legal  consequence,  it  would  be  a  social  anachronism 
to  assume  that  in  practice  it  followed  rapidly  or  gen- 
erally. The  original  object  of  the  marriage  'without 
coming  under  the  hand'  was  doubtless  to  prevent 
the  acquisition  of  excessive  proprietary  power  by  the 
husband,  not  to  deprive  him  of  all  such  power,  and 


IJBCT.  XL  THE   DOTAL   ESTATE.  318 

indeed  the  legal  result  of  this  marriage,  unless  prac- 
tically qualified  in  some  way,  would  unquestionably 
have  been  far  in  advance  of  social  feeling.  Here, 
then,  we  come  upon  an  institution  which,  of  all  purely 
artificial  institutions,  has  had  perhaps  the  longest  and 
the  most  important  history.  This  is  the  dos,  or  dotal 
estate,  something  very  different  from  our  'dower.' 
It  has  become  the  dot  of  French  law,  and  is  the 
favourite  form  of  settling  the  property  of  married 
women  all  over  the  Continent  of  Europe.  It  is  a 
contribution  by  the  wife's  family,  or  by  the  wife  her- 
self, intended  to  assist  the  husband  in  bearing  the 
expenses  of  the  conjugal  household.  Only  the 
revenue  belonged  to  the  husband,  and  many  minute 
rules,  which  need  not  be  specified  here,  prevented 
him  from  spending  it  on  objects  foreign  to  the  pur- 
pose of  the  settlement.  The  corpus  or  capital  of  the 
settled  property  was,  among  the  Romans  (as  now  in 
France),  incapable  of  alienation,  unless  with  the 
permission  of  a  court  of  justice.  If  any  part  of  the 
wife's  property  was  not  settled  on  her  as  dos,  it 
became  her  parapherna.  Parapherna  means  some- 
thing very  different  from  our  '  paraphernalia,'  and  is 
the  biens  separes  of  French  law.  It  was  that  portion 
of  a  wife's  property  which  was  held  by  her  under 
the  strict  law  applicable  to  a  woman  marrying  with- 
out *  coming  under  the  hand.'  The  authority  of  her 
guardians  having  died  out,  and  this  part  of  her  pro- 


320  PROGRESS   OF  ROMAN  LAW.  LECT.  x* 

perty  not  having,  by  the  assumption,  been  conveyed 
to  the  husband  as  dos,  it  remained  under  her  exclu- 
sive control,  and  at  her  exclusive  disposal.  It  is  only 
quite  recently,  under  the  Married  Women's  Property 
Act,  that  we  have  arrived  at  a  similar  institution, 
since  money  settled  to  a  wife's  separate  use,  though 
practically  the  same  thing,  required  a  settlement  to 
create  it. 

I  have  now  abridged  a  very  long,  and,  in  some 
portions,  a  very  intricate  history.  The  Roman  law 
began  by  giving  all  the  wife's  property  to  the  hus- 
band, because  she  was  assumed  to  be,  in  law,  his 
daughter.  It  ended  in  having  for  its  general  rule 
that  all  the  wife's  property  was  under  her  own  con- 
trol, save  when  a  part  of  it  had  been  converted  by 
settlement  into  a  fund  for  contributing  to  the  ex- 
penses of  the  conjugal  household.  But,  no  doubt, 
the  exception  to  the  general  rule  was  the  ordinary 
practice.  In  all  respectable  households,  as  now  on 
the  Continent,  there  was  a  settlement  by  way  of  dos. 
Not  that  we  are  to  suppose  there  was  among  the 
Romans  any  such  form  of  contract  as  we  are  accus- 
tomed to  under  the  name  of  Marriage  Settlement. 
The  mechanism  was  infinitely  simpler.  A  few  words 
on  paper  would  suffice  to  bring  any  part  of  the  wife's 
property  under  the  well-ascertained  rules  supplied  by 
the  written  law  for  dotal  settlements,  and  nothing 
more  than  these  words  would  be  needed,  unless  the 


LKCT.  XI.        HINDOO    LAW   OF   WOMAN  S   PROPERTY.  321 

persons  marrying  wished  to  vary  the  provisions  of 
the  law  by  express  agreement.  This  simple,  but 
most  admirable,  contrivance  of  having,  so  to  speak, 
model  settlements  set  forth  ready  made  in  the  law, 
which  may  be  adopted  or  not  at  pleasure,  charac- 
terises the  French  Code  Napoleon,  and  it  was  in- 
herited by  the  French  from  the  Romans. 

Warning  you  that  the  account  which  I  have  given 
you  of  the  transitions  through  which  the  Roman  law 
of  settled  property  passed,  is,  from  the  necessity  of 
the  case,  fragmentary,  I  pass  to  the  evidence  of  early 
ideas  on  our  subject  which  is  contained  in  the  Hindoo 
law.  The  settled  property  of  a  married  woman,  in- 
capable of  alienation  by  her  husband,  is  well-known 
to  the  Hindoos  under  the  name  of  Stridhan.  It  is 
certainly  a  remarkable  fact  that  the  institution  seems 
to  have  been  developed  among  the  Hindoos  at  a 
period  relatively  much  earlier  than  among  the  Ro- 
mans. But  instead  of  being  matured  and  improved, 
as  it  was  in  the  Western  society,  there  is  reason  to 
think  that  in  the  East,  under  various  influences 
which  may  partly  be  traced,  it  has  gradually  been 
reduced  to  dimensions  and  importance  far  inferior 
to  those  which  at  one  time  belonged  to  it. 

The  definition  of  Stridhan,  or  '  woman's  property,' 
given  in  one  of  the  oldest  and  most  authoritative  of 
the  Hindoo  juridical  treatises,  the  Mitakshara,  is  as 
follows:  '  That  which  is  given  (to  the  wife)  by  the 

Y 


322  THE   STEIDHAN.  LECT.  xi. 

father,  the  mother,  the  husband,  or  a  brother,  at  the 
time  of  the  wedding,  before  the  nuptial  fire.'  Up  to 
this  point,  the  doctrine  has  the  concurrence  of  all  the 
schools  of  Hindoo  law,  but  the  compiler  of  the  Mitak- 
shara  adds  a  proposition  not  found  elsewhere  :  '  also 
property  which  she  may  have  acquired  by  inheritance, 
purchase,  partition,  seizure,  or  finding,  is  denomi- 
nated by  Manu  and  the  others  "  woman's  pro- 
perty."' (Mitakshara,  xi.  2.)  These  words,  attri- 
buted, you  see,  to  the  mythical  legislator,  Manu, 
have  excited  the  most  vehement  controversies  among 
later  Brahminical  commentators,  and  have  caused 
considerable  perplexity  to  Anglo-Indian  Judges, 
bound  as  they  are  to  elicit  consistent  doctrine  from 
the  Hindoo  legal  texts.  *  All  the  property  which  a 
woman  may  ha^e  acquired  by  inheritance,  purchase, 
partition,  seizure,  or  finding,'  is  a  comprehensive 
description  of  all  the  forms  of  property  as  defined  by 
the  modes  of  acquisition,  and,  if  all  this  be  Stridhan, 
it  follows  that  the  ancient  Hindoo  law  secured  to 
married  women,  in  theory  at  all  events,  an  even 
greater  degree  of  proprietary  independence  than 
that  given  to  them  by  the  modern  English  Married 
Women's  Property  Act.  No  doubt  there  is  much 
difficulty  in  understanding  this.  The  existing  Hin- 
doo written  law,  which  is  a  mixed  body  of  religious, 
moral,  and  legal  ordinances,  is  pre-eminently  distin- 
guished by  the  strictness  with  which  it  maintains  a 


user.  xi.      STKIDHAN  IN  THE  ANGLO-INDIAN  COUKTS.  323 

number  of  obligations  plainly  traceable  to  the  ancient 
despotism  of  the  Family,  and  by  its  excessive  harsh- 
ness to  the  personal  and  proprietary  liberty  of  wo- 
men. Among  the  Aryan  sub-races,  the  Hindoos 
may  be  as  confidently  asserted  as  the  Romans  to 
have  had  their  society  organised  as  a  collection  of 
patriarchally  governed  families.  If,  then,  at  any 
early  period,  the  married  woman  had  among  the 
Hindoos  her  property  altogether  enfranchised  from 
her  husband's  control,  it  is  not  easy  to  give  a  reason 
why  the  obligations  of  the  family  despotism  were 
relaxed  in  this  one  particular.  In  point  of  fact,  there 
is  no  clue  to  the  mystery  so  long  as  we  confine  our 
attention  to  the  Hindoo  law,  and  no  course  is  open  to 
a  Judge  except  to  take  his  stand  on  the  one  ancient 
authority  I  have  quoted  or  to  follow  the  great  bulk 
of  modern  authorities  who  repudiate  the  doctrine  of 
the  Mitakshara  on  this  point.  The  Anglo-Indian 
Courts  have  now  substantially  decided  that  Hindoo 
law  (with  the  possible  exception  of  that  current  in 
Western  India)  limits  the  Stridhan  to  property  given 
to  the  woman  at  her  marriage  either  by  her  family 
or  by  her  husband  ('  Madras  High  Court  Reports,' 
iii.  312).  I  think,  however,  that  if  we  extend  our 
examination  to  other  bodies  of  Aryan  custom,  we  may 
partly  understand  the  amplitude  which  the  Mitak- 
shara,  one  of  the  most  archaic  of  Hindoo  compendia, 
assigns  to  the  Stridhan.  A  full  enquiry  would  take 

T2 


224  PRE-HISTORIC   ORIGIX   OF   STEIDHAN.      LECT.  xi. 

me  much  beyond  the  limits  which  I  have  proposed  to 
myself  in  this  Lecture,  but  its  results  would  shortly 
be  these.  Among  the  Aryan  communities  as  a  whole, 
we  find  the  earliest  traces  of  the  separate  property  of 
women  in  the  widely  diffused  ancient  institution 
known  as  the  Bride-Price.  Part  of  this  price,  which 
was  paid  by  the  bridegroom  either  at  the  wedding  or 
the  day  after  it,  went  to  the  bride's  father  as  com- 
pensation for  the  Patriarchal  or  Family  authority 
which  was  transferred  to  the  husband,  but  another 
part  went  to  the  bride  herself  and  was  very  generally 
enjoyed  by  her  separately  and  kept  apart  from  her 
husband's  property.  It  further  appears  that  under  a 
certain  number  of  Aryan  customs  the  proprietary 
rights  of  other  kinds  which  women  slowly  acquired 
were  assimilated  to  their  rights  in  their  portion  of 
the  Bride-Price,  probably  as  being  the  only  existing 
type  of  woman's  property.  The  exact  extent  of 
the  separate  ownership  which  the  ancient  Irish  law 
allowed  to  married  women  is  still  uncertain,  but  un- 
doubtedly they  had  some  power  of  dealing  with  their 
own  property  without  the  consent  of  their  husbands, 
and  this  was  one  of  the  institutions  expressly  de- 
clared by  the  Judges  to  be  illegal  at  the  beginning 
of  the  seventeenth  century. 

If  then  the  Stridhan  had  a  pre-historic  origin  in 
the  Bride-Price,  its  growth  and  decay  become  more 
intelligiole.  First  of  all  it  was  property  conferred 


user.  II.     BRAHMIN  DISLIKE  OF  WOMAN'S  PROPERTY.  32fi 

on  the  wife  by  the  husband  '  at  the  nuptial  fire/  as 
the  sacerdotal  Hindoo  lawyers  express  it.  Next  it 
came  to  include  what  the  Romans  called  tbe  dos, 
property  assigned  to  the  wife  at  her  marriage  by  her 
own  family.  The  next  stage  may  very  well  have 
been  reached  only  in  certain  parts  of  India,  and  the 
rules  relating  to  it  may  only  have  found  their  way 
into  the  doctrine  of  certain  schools ;  but  still  there  is 
nothing  contrary  to  the  analogies  of  legal  history  in 
the  extension  of  the  Stridhan  until  it  included  all  the 
property  of  a  married  woman.  The  really  interesting 
question  is  how  came  the  law  to  retreat  after  ap- 
parently advancing  farther  than  the  Middle  Roman 
Law  in  the  proprietary  enfranchisement  of  women, 
and  what  are  the  causes  of  the  strong  hostility  of  the 
great  majority  of  Hindoo  lawyers  to  the  text  of  the 
Mitakshara,  of  which  the  authority  could  not  be 
wholly  denied  ?  There  are  in  fact  clear  indications 
of  a  sustained  general  effort  on  the  part  of  the  Brah- 
minical  writers  on  mixed  law  and  religion,  to  limit 
the  privileges  of  women  which  they  seem  to  have 
found  recognised  by  older  authorities.  The  attention 
of  English  and  European  students  of  the  Hindoo 
law  books  was  first  attracted  to  this  subject  by  a 
natural  desire  to  scrutinise  the  sacred  texts  upon 
which  the  Brahmin  learned  were  in  the  habit  of  in- 
sisting in  defence  of  the  abominable  practice  of  Suttee 
or  widow-burning.  The  discovery  was  soon  made 


326  ENFRANCHISEMENT   OF  WOMEX.  LECT.  M, 

that  the  oldest  monuments  of  law  and  religion  gave 
no  countenance  to  the  rite,  and  the  conclusion  was  at 
once  drawn  that,  even  on  Hindoo  principles,  it  was 
an  unlawful  innovation.  This  mode  of  reasoning 

o 

undoubtedly  gave  comfort  to  many  devout  Hindoos, 
whom  no  secular  argument  could  have  reconciled  to 
the  abandonment  of  a  custom  of  proved  antiquity ; 
but  still,  in  itself  it  was  unsound.  The  disuse  of  all 
practices  which  a  scholar  could  show  to  be  relatively 
modern  would  dissolve  the  whole  Hindoo  system. 
These  inquiries,  pushed  much  farther,  have  shown 
that  the  Hindoo  laws,  religious  and  civil,  have  for 
centuries  been  undergoing  transmutation,  develop- 
ment, aiid,  in  some  points,  depravation  at  the  hands 
of  successive  Brahminical  expositors,  and  that  no 
rules  have  been  so  uniformly  changed — as  we  should 
say,  for  the  worse — as  those  which  affect  the  legal 
position  of  women. 

It  will  probably  be  conceded  by  all  who  have  paid 
any  attention  to  our  subject,  that  the  civilised  so- 
cieties of  the  West,  in  steadily  enlarging  the  personal 
and  proprietary  independence  of  women,  and  even  in 
granting  to  them  political  privilege,  are  only  follow- 
ing out  still  farther  a  law  of  development  which  they 
have  been  obeying  for  many  centuries.  The  society, 
which  once  consisted  of  compact  families,  has  got  ex- 
tremely near  to  the  condition  in  which  it  will  consist 
exclusively  of  individuals,  when  it  has  finally  and 


LECT.  si.  DEVELOPMENT   OF   HINDOO    LAW.  327 

completely  assimilated  the  legal  position  of  women  to 
the  legal  position  of  men.  In  addition  to  many  other 
objections  which  may  be  urged  against  the  common 
allegation  that  the  legal  disabilities  of  women  are 
merely  part  of  the  tyranny  of  sex  over  sex,  it  is  his- 
torically and  philosophically  valueless,  as  indeed  are 
most  propositions  concerning  classes  so  large  as  sexes. 
What  really  did  exist  is  the  despotism  of  groups  over 
the  members  composing  them.  What  really  is  being 
relaxed  is  the  stringency  of  this  despotism.  Whether 
this  relaxation  is  destined  to  end  in  utter  dissolu- 
tion— whether,  on  the  other  hand,  under  the  influence 
either  of  voluntary  agreement  or  of  imperative  law, 
society  is  destined  to  crystallise  in  new  forms — are 
questions  upon  which  it  is  not  now  material  to  enter, 
even  if  there  were  any  hope  of  solving  them.  All  we 
need  at  present  note  is  that  the  so-called  enfranchise- 
ment of  women  is  merely  a  phase  of  a  process  which 
has  affected  very  many  other  classes,  the  substitution 
of  individual  human  beings  for  compact  groups  of 
human  beings  as  the  units  of  society.  Now,  it  is  true 
that  in  the  legal  institutions  of  the  Hindoos  (political 
institutions,  I  need  scarcely  say,  for  many  centuries 
they  have  had  none)  the  despotism  of  the  family  group 
over  the  men  and  women  composing  it  is  maintained 
in  greater  completeness  than  among  any  society  o£ 
similar  civilisation  and  culture.  Yet  there  is  abun- 
dant evidence  that  the  emancipation  of  the  individual 


328  PER  STIRPES  AND   PER  CAPITA.  LECT.  XL 

from  the  family  had  proceeded  some  way,  even  before 
the  country  had  come  under  the  Western  influences 
through  the  British  dominion.  If  I  were  to  give 
you  the  full  proof  of  this,  I  should  have  to  take  you 
through  much  of  the  detail  of  Hindoo  law.  I  will 
mention  one  indication  of  it,  because  few  are  aware 
that  the  peculiarity  in  question  serves  as  a  sort  of 
test  by  which  we  can  distinguish  very  ancient  or  un- 
developed from  comparatively  matured  and  developed 
law. 

All  beginners  in  law  have  heard  of  the  difference 
between  distributing  an  inheritance  per  stirpes  and 
distributing  it  per  capita.  A  man  has  two  sons,  one 
of  whom  has  eight  children,  and  the  other  two.  The 
grandfather  dies,  his  two  sons  having  died  before 
him,  and  the  grandfather's  property  has  to  be  divided 
between  the  grandchildren.  If  the  division  is  per 
stirpes  the  stocks  of  the  two  sons  will  be  kept  sepa- 
rate, and  one  half  of  the  inheritance  will  be  distri- 
buted between  the  eight  grandchildren,  and  the  other 
half  between  the  two.  If  the  division  is  per  capita 
the  property  will  be  equally  divided  between  the 
whole  ten  grandchildren,  share  and  share  alike.  Now 
the  tendency  of  matured  and  developed  law  is  to  give 
a  decided  preference  to  distribution  per  stirpes ;  it  is 
only  with  remote  classes  of  relatives  that  it  abandons 
the  distinctions  between  the  stocks  and  distributes 
the  property  per  capita.  But  in  this,  as  in  several 


LBCT.  30.       HINDOO  PRESERVATION  OP  THE  STOCKS.  329 

other  particulars,  very  ancient  and  undeveloped  law 
reverses  the  ideas  of  the  modern  jurist,  and  uniformly 
prefers  distribution  per  capita,  exactly  equal  division 
between  all  the  surviving  members  of  the  family;  and 
this  is  apparently  on  the  principle  that,  all  having  been 
impartially  subject  to  a  despotism  which  knew  no 
degrees,  all  ought  to  share  equally  on  the  dissolution 
of  the  community  by  the  death  of  its  chief.  A  pre- 
ference for  division  per  stirpes,  a  minute  care  for  the 
preservation  of  the  stocks,  is  in  fact  Tery  strong  evi- 
dence of  the  growth  of  a  respect  for  individual  in- 
terests inside  the  family,  distinct  from  the  interests 
of  the  family  group  as  a  whole.  This  is  why  the  place 
given  to  distribution  per  stirpes  shows  that  a  given 
system  of  law  has  undergone  development,  and  it  so 
happens  that  this  place  is  very  large  in  Hindoo  law, 
which  is  extremely  careful  of  the  distinction  between 
stocks,  and  maintains  them  through  long  lines  of 
succession. 

Let  us  now  turn  to  the  causes  which  in  the  Hindoo 
law,  and  in  the  great  alternative  Aryan  system,  the 
Roman  law,  have  respectively  led  to  the  disengage- 
ment of  the  individual  from  the  group.  So  far  as 
regards  the  Roman  institutions,  we  know  that  among 
the  most  powerful  solvent  influences  were  certain 
philosophical  theories,  of  Greek  origin,  which  had 
deep  effect  on  the  minds  of  the  jurists  who  guided 
the  development  of  the  law.  The  law,  thus  trans- 


330  ROMAN   LEGISLATION.  MOT.  xr. 

formed  by  a  doctrine  which  had  its  most  distinct  ex- 
pression in  the  famous  proposition,  '  all  men  are 
equal,'  was  spread  over  much  of  the  world  by  Roman 
legislation.  The  empire  of  the  Romans,  for  one  reason 
alone,  must  be  placed  in  a  totally  different  class  from 
the  Oriental  despotisms,  ancient  and  modern,  and 
even  from  the  famous  Athenian  Empire.  All  these 
last  were  tax-taking  empires,  which  exercised  little 
or  no  interference  in  the  customs  of  village-communi- 
ties or  tribes.  But  the  Roman  Empire,  while  it  was 
a  tax -taking,  was  also  a  legislating  empire.  It  crushed 
out  local  customs,  and  substituted  for  them  institutions 
of  its  own.  Through  its  legislation  alone  it  effected  so 
great  an  interruption  in  the  history  of  a  large  part  of 
mankind,  nor  has  it  had  any  parallel  except — and  the 
comparison  is  very  imperfect — the  modern  British 
Empire  in  India.  There  is  no  reason  to  suppose 
that  philosophical  theory  had  any  serious  influence 
on  the  jurisprudence  of  the  Hindoos.  I  speak  with 
reserve  on  the  subject,  but  I  believe  that  none  of  the 
remarkable  philosophical  theories  which  the  genius  of 
the  race  produced  are  founded  on  a  conception  of  the 
individual  as  distinct  from  that  of  the  group  in  which 
he  is  born.  From  those  of  them  with  which  I  happen 
to  be  acquainted,  I  should  say  that  their  charac- 
teristics are  of  exactly  the  reverse  order,  and  that 
they  have  their  nearest  counterpart  in  certain  philo- 
sophical systems  of  our  own  day,  under  which  the 


LECT.  xi.   EFFECTS   OF  RELIGION   ON  LEGAL  DOCTRINE.     331 

individual  seems  lost  in  some  such  conception  as  that 
of  Humanity.  What,  then,  was  the  influence  (for 
some  influence  there  certainly  was)  which,  operating 
on  the  minds  of  the  Brahuiinical  jurists,  led  them  to 
assign  to  the  individual  rights  distinct  from  those 
which  would  have  belonged  to  him  through  mere 
membership  in  the  family  group  ?  I  conceive  that 
it  was  the  influence  of  Religion.  Wherever  among 
any  part  of  Hindoo  society  there  prevailed  the  con- 
viction of  responsibility  after  death — whether  that 
responsibility  was  to  be  enforced  by  direct  rewards 
and  punishments,  or  through  the  stages  of  the  me- 
tempsychosis— the  conception  of  the  individual,  who 
was  to  suffer  separately  and  enjoy  separately,  was 
necessarily  realised  with  extreme  distinctness. 

The  portions  of  the  race  strongly  affected  by  re- 
ligious belief  of  this  kind  were  exactly  those  for  which 
the  Brahminical  jurists  legislated,  and  at  first  they 
probably  legislated  for  these  alone.  But  with  the 
notion  of  responsibility  after  death  the  notion  of  ex- 
piation was  always  associated.  Building  upon  this 
last  notion,  the  Brahminical  commentators  gradually 
transformed  the  whole  law  until  it  became  an  exempli- 
fication of  what  Indian  lawyers  call  the  doctrine  of 
Spiritual  Benefit.  Inasmuch  as  the  condition  of  the 
dead  could  be  ameliorated  by  proper  expiatory  rites, 
the  property  descending  or  devolving  on  a  man  came 
to  be  regarded  by  these  writers  partly  as  a  fund  for 


332  EELIGIOUS   OBJECTS   OF  PROPERTY.         LEW.  xi. 

pa}7ing  the  expenses  of  the  ceremonial  by  which  the 
soul  of  the  person  from  whom  the  inheritance  came 
could  be  redeemed  from  suffering  or  degradation,  and 
partly  as  a  reward  for  the  proper  performance  of  the 
sacrifices.  There  ought  to  be  nothing  to  surprise  us 
in  the  growth  of  such  a  doctrine,  since  it  is  only 
distinguished,  by  its  logical  completeness,  from  one 
which  had  great  influence  on  Western  jurisprudence. 
The  interest  which  from  very  early  times  the  Church 
claimed  in  the  moveable  or  personal  property  of 
deceased  persons  is  best  explained  by  its  teaching 
that  the  first  and  best  destination  of  a  dead  man's 
goods  was  to  purchase  masses  for  his  soul,  and  out 
of  this  view  of  the  proper  objects  of  wealth  the 
whole  testamentary  and  intestate  jurisdiction  of  the 
Ecclesiastical  Courts  appears  to  have  grown.  But 
in  India  the  law  constructed  on  these  principles 
became  extremely  unfavourable  to  the  ownership 
of  property  by  women,  apparently  because  its  priestly 
authors  thought  that  women,  through  their  physical 
weakness  and  their  seclusion  (which  was  doubtless 
regarded  as  unavoidable),  would  have  much  greater 
difficulty  than  men,  amid  a  society  always  more  or 
less  disturbed,  in  applying  a  proper  share  of  the 
property  to  the  funeral  ceremonies  of  the  person 
who  had  transmitted  it.  The  reasoning  on  the  sub- 
ject current  even  in  comparatively  ancient  times  is 
thus  given  in  the  Mitakshara  :  '  The  wealth  of  a 


LECT.  XI.      BRAHMIN  VIEW  OF  WOMAN'S  PROPERTY.  3W 

regenerate  man  is  designed  for  religious  uses,  and  a 
woman's  succession  to  such  property  is  unfit  because 
she  is  not  competent  to  the  performance  of  religious 
rites.'  The  compiler  of  the  Mitakshara  who  has 
preserved  the  liberal  rule  as  to  Stridhan  which  I 
before  referred  to,  combats  this  doctrine,  not,  how- 
ever, by  affirming  the  capacity  of  women  for  sacrifice, 
but  by  denying  that  all  property  is  intended  for 
religious  uses,  and  by  pointing  out  that  certain  acts 
which  a  female  owner  can  do  are  of  a  quasi-religious 
character,  e.g.,  she  may  dig  tanks.  (Mitakshara,  ii. 
1,  22,  23,  24. )  And,  putting  him  aside,  the  Brahmi- 
nical  commentators  who  succeed  one  another  in  the 
Hindoo  juridical  schools  show  a  visibly  increasing 
desire  to  connect  all  property  with  the  discharge  of 
sacrificial  duties,  and  with  this  desire  the  reluctance 
to  place  property  in  the  hands  of  women  is  somehow 
connected. 

On  the  whole  the  successive  generations  of  Hin- 
doo lawyers  show  an  increasing  hostility  to  the  insti- 
tution of  the  Stridhan,  not  by  abolishing  it,  but  by 
limiting  to  the  utmost  of  their  power  the  circum- 
stances under  which  it  can  arise.  Minute  distinc- 
tions are  drawn  between  the  various  modes  in  which 
property  may  devolve  upon  a  woman,  and  the  condi- 
tions under  which  such  property  may  become  Stridhan 
made  rare  and  exceptional.  The  aim  of  the  law- 
yers was  to  add  to  the  family  stock,  and  to  place 


334  RIGHTS  OF  THE  CHILDLESS  WIDOW.        ZECT.  n. 

under  the  control  of  the  husband  as  much  as  they 
could  of  whatever  came  to  the  wife  by  inheritance 
or  gift ;  but  whenever  the  property  does  satisfy  the 
multifarious  conditions  laid  down  for  the  creation 
of  the  Stridhan,  the  view  of  it  as  emphatically 
'woman's  property'  is  carried  out  with  a  logical 
consistency  very  suggestive  of  the  character  of  the 
ancient  institution  on  which,  the  Brahminical  jurists 
made  war.  Not  only  has  the  woman  singularly  full 
power  of  dealing  with  the  Stridhan — not  only  is  the 
husband  debarred  from  intermeddling  with  it,  save  in 
extreme  distress — but,  when  the  proprietress  dies, 
there  is  a  special  order  of  succession  to  her  property, 
which  is  manifestly  intended  to  give  a  preference, 
wherever  it  is  possible,  to  female  relatives  over  males. 
Let  me  add  that  the  account  which  I  have  given 
you  of  the  probable  liberality  of  the  Hindoo  institu- 
tions to  females  at  some  long  past  period  of  their 
development,  and  of  the  dislike  towards  this  liberality 
manifested  by  the  Brahminical  lawyers,  is  not  to  be 
regarded  as  fanciful  or  purely  conjectural,  although, 
doubtless,  we  can  only  guess  at  the  explanation  of  it. 
It  is  borne  out  by  a  very  considerable  number  of 
indications,  one  of  which  I  mention  as  of  great  but 
very  painful  interest.  The  most  liberal  of  the  Hindoo 
schools  of  jurisprudence,  that  prevailing  in  Bengal 
Proper,  gives  a  childless  widow  the  enjoyment  of  her 
husband's  property,  under  certain  restrictive  condi- 


LECT.  H.  SDTTEE   IS  BENGAL.  335 

tions,  for  her  life ;  and  in  this  it  agrees  with  many 
bodies  of  unwritten  local  custom.  If  there  are  male 
children,  they  succeed  at  once;  but  if  there  are  none 
the  widow  comes  in  for  her  life  before  the  collateral 
relatives.  At  the  present  moment,  marriages  among 
the  upper  classes  of  Hindoos  being  very  commonly 
infertile,  a  considerable  portion  of  the  soil  of  the 
wealthiest  Indian  province  is  in  the  hands  of  childless 
widows  as  tenants  for  life.  But  it  was  exactly  in 
Bengal  Proper  that  the  English,  on  entering  India, 
found  the  Suttee,  or  widow-burning,  not  merely  an 
occasional,  but  a  constant  and  almost  universal  prac- 
tice with  the  wealthier  classes,  and,  as  a  rule,  it  was 
only  the  childless  widow,  and  never  the  widow  with 
minor  children,  who  burnt  herself  on  her  husband's 
funeral  pyre.  There  is  no  question  that  there  was  the 
closest  connection  between  the  law  and  the  religious 
custom,  and  the  widow  was  made  to  sacrifice  herself 
in  order  that  her  tenancy  for  life  might  be  got  out 
of  the  way.  The  anxiety  of  her  family  that  the  rite 
should  be  performed,  which  seemed  so  striking  to  the 
first  English  observers  of  the  practice,  was,  in  fact, 
explained  by  the  coarsest  motives ;  but  the  Brahmins 
who  exhorted  her  to  the  sacrifice  were  undoubtedly 
influenced  by  a  purely  professional  dislike  to  her  en- 
joyment of  property.  The  ancient  rule  of  the  civil 
law,  which  made  her  tenant  for  life,  could  not  be  got 
rid  of,  but  it  was  combated  by  the  modem  institution 


330  ROMAN  -COMPULSORY   DOTATION.  LECT.  xi. 

which  made  it  her  duty  to  devote  herself  to  a  fright- 
ful death. 

If  the  Stridhan  of  the  Hindoos  is  a  form  of  married 
women's  separate  property,  which  has  been  disliked 
and  perverted  by  the  professional  classes  who  had  the 
power  to  modify  it,  the  institution  which  was  first  the 
dos  of  the  Romans,  and  is  now  the  dot  of  Continental 
Europe,  has  received  a  singular  amount  of  artificial 
encouragement.  I  have  endeavoured  to  describe  to 
you  how  it  originated,  but  I  have  yet  to  state  that 
it  entered  into  one  of  the  most  famous  social  experi- 
ments of  the  Roman  Empire.  A  well-known  statute 
of  the  Emperor  Augustus,  celebrated  by  Horace  in 
an  official  ode  as  the  prince's  greatest  legislative 
achievement,  had  for  its  object  the  encouragement  and 
regulation  of  marriage  and  the  imposition  of  penalties 
on  celibacy.  Among  the  chief  provisions  of  this 
'  Lex  Julia  et  Papia  Poppoea  ' — to  give  its  full  title — 
was  a  clause  compelling  opulent  parents  to  create 
portions,  or  dotes,  for  their  marriageable  daughters. 
This  provision  of  a  statute,  which  very  deeply  affected 
the  Roman  law  in  many  ways,  must  have  met  with 
general  approval,  for  at  a  later  date  we  find  the  same 
principle  applied  to  the  donatio  propter  nuptias,  or 
settlement  on  the  married  couple  from  the  husband's 
side.  In  the  matured  Roman  law,  therefore,  singular 
as  it  may  seem  to  us,  parents  were  under  a  statutory 
obligation  to  make  settlements  on  their  children. 


LECT.  XI.    THE  CHURCH  AND  THE  INTERESTS  OF  WIDOWS.    337 

It  has  been  rather  the  fashion  to  speak  of  these 
experiments  of  the  Roman  Emperors  on  public  mo- 
rality as  if  they  totally  miscarried — I  suppose,  from 
some  idea  that  the  failure  added  to  the  credit  of 
the  moral  regeneration  effected  by  Christianity.  But, 
as  a  matter  of  fact,  the  Christian  Church  conferred 
few  civil  benefits  of  greater  moment  to  several 
generations  of  mankind  than  in  keeping  alive  the 
traditions  of  the  Roman  legislation  respecting  settled 
property,  and  in  strenuously  exerting  itself  to  extend 
and  apply  the  principles  of  these  disciplinary  laws. 
There  can  be  no  serious  question  that,  in  its  ultimate 
result,  the  disruption  of  the  Roman  Empire  was  very 
unfavourable  to  the  personal  and  proprietary  liberty 
of  women.  I  purposely  say,  '  in  its  ultimate  result,' 
in  order  to  avoid  a  learned  controversy  as  to  their 
position  under  purely  Teutonic  customs.  It  is  very 
possible  that  the  last  stages  of  the  process,  which  it 
is  difficult  to  call  anything  but  feudalisation,  were 
more  unfavourable  to  women  than  the  earlier  changes, 
which  were  exclusively  due  to  the  infusion  of  Ger- 
manic usage;  but,  at  any  rate,  the  place  of  women 
under  the  new  system  when  fully  organised  was  worse 
than  it  was  under  Roman  law,  and  would  have  been 
very  greatly  worse  but  for  the  efforts  of  the  Church. 
One  standing  monument  of  these  efforts  we  have 
constantly  before  us  in  the  promise  of  the  husband  in 
the  Marriage  service,  *  With  all  my  worldly  goods,  I 

z 


338  DOS  AXD  DOAEIUM.  user,  n. 

thee  endow; '  a  formula  which  sometimes  puzzles  the 
English  lawyer,  from  its  want  of  correspondence  with 
anything  which  he  finds  among  the  oldest  rules  of 
English  law.  The  words  have,  indeed,  been  oc- 
casionally used  in  English  legal  treatises,  as  the  text 
of  a  disquisition  on  the  distinction  between  Roman 
dos,  to  which  they  are  supposed  to  refer,  and  the 
doarium,  which  is  the  '  dower '  of  lands  known  to 
English  law.  The  fact  is,  however,  that  the  tradition 
which  the  Church  was  carrying  on  was  the  general 
tradition  of  the  Roman  dos,  the  practical  object  being 
to  secure  for  the  wife  a  provision  of  which  the  hus- 
band could  not  wantonly  deprive  her,  and  which 
would  remain  to  her  after  his  death.  The  bodies  of 
customary  law  which  were  built  up  over  Europe  were, 
in  all  matters  of  first  principle,  under  ecclesiastical 
influences;  but  the  particular  applications  of  a  prin- 
ciple once  accepted  were  extremely  various.  The 
dower  of  lands  in  English  law,  of  which  hardly  a 
shadow  remains,  but  under  which  a  wife  surviving 
her  husband  took  a  third  of  the  rents  and  profits  of 
his  estates  for  life,  belonged  to  a  class  of  institutions 
widely  spread  over  Western  Europe,  very  similar  in 
general  character,  often  designated  as  doarium,  but 
differing  considerably  in  detail.  They  unquestionably 
had  their  origin  in  the  endeavours  of  the  Church  to 
revive  the  Roman  institution  of  the  compulsory  dos, 
which,  in  this  sense,  produced  the  doarium,  even 


LECT.  XT.  THE   PRACTICE   OF  DOTATION.  839 

though  the  latter  may  have  had  a  partially  Germanic 
origin,  and  even  though  it  occasionally  assume  (as  it 
unquestionably  does)  a  shape  very  different  from  the 
original  institution.  I  myself  believe  that  another 
effect  of  this  persistent  preaching  and  encouragement 
is  to  be  found  in  the  strong  feeling  which  is  diffused 
through  much  of  Europe,  and  specially  through  the 
Latinised  societies,  in  favour  of  dotation,  or  portioning 
of  daughters,  a  feeling  which  seldom  fails  to  astonish 
a  person  acquainted  with  such  a  country  as  France  by 
its  remarkable  intensity.  It  is  an  economical  power 
of  considerable  importance,  for  it  is  the  principal 
source  of  those  habits  of  saving  and  hoarding  which 
characterise  the  French  people,  and  I  regard  it  as 
descended,  by  a  long  chain  of  succession,  from  the 
obligatory  provisions  of  the  marriage  law  of  the 
Emperor  Augustus. 

The  importance  and  interest  of  our  subject,  when 
treated  in  all  its  bearings  and  throughout  its  whole 
history,  are  quite  enough  to  excuse  me,  I  trust,  for 
having  detained  you  with  an  account  of  its  obscure 
beginnings.  It  has  been  said  that  the  degree  in 
which  the  personal  immunity  and  proprietary  capacity 
of  women  are  recognised  in  a  particular  state  or  com- 
munity is  a  test  of  its  degree  of  advance  in  civilisation ; 
and,  though  the  assertion  is  sometimes  made  without 
the  qualifications  which  are  necessary  to  give  it  value, 
it  is  very  far  indeed  from  being  a  mere  gallant  com- 


340  ENFRANCHISEMENT   OF   WOMEN.  LKCT.  xt 

monplace.  For,  inasmuch  as  no  class  of  similar  im- 
portance and  extent  was,  in  the  infancy  of  society, 
placed  in  a  position  of  such  absolute  dependence  as 
the  other  sex,  the  degree  in  which  this  dependence 
has  step  by  step  been  voluntarily  modified  and  re- 
laxed, serves  undoubtedly  as  a  rough  measure  of 
tribal,  social,  national  capacity  for  self-control — of 
that  same  control  which  produces  wealth  by  subduing 
the  natural  appetite  of  living  for  the  present,  and 
which  fructifies  in  art  and  learning  through  subordi- 
nating a  material  and  immediate  to  a  remote,  intan- 
gible, and  spiritual  enjoyment.  The  assertion,  then, 
that  there  is  a  relation  between  civilisation  and  the 
proprietary  capacities  of  women  is  only  a  form  of  the 
truth  that  every  one  of  those  conquests,  the  sum  of 
which  we  call  civilisation,  is  the  result  of  curbing 
some  one  of  the  strongest,  because  the  primary,  im- 
pulses of  human  nature.  If  we  were  asked  why  the 
two  societies  with  which  we  have  been  concerned — 
the  Hindoos  on  the  one  hand,  and  the  Romans  and 
all  the  races  to  which  they  have  bequeathed  their  in- 
stitutions on  the  other — have  had  so  widelv  different 

j 

a  history,  no  reply  can  be  very  confidently  given,  so 
difficult  is  it,  among  the  vast  variety  of  influences 
acting  on  great  assemblages  of  men,  to  single  out  any 
one  or  any  definite  number  of  them,  and  to  be  sure 
that  these  have  operated  more  powerfully  than  the 
rest.  Yet,  if  it  were  absolutely  necessary  to  give  an 


LECT.  XI.  ENFRANCHISEMENT   OF   WOMEN.  841 

answer,  it  would  consist  in  pointing  to  the  difference 
in  their  social  history  which  has  been  the  subject  of 
this  lecture,  and  in  observing  that  one  steadily  car- 
ried forward,  while  the  other  recoiled  from,  the  series 
of  changes  which  put  an  end  to  the  seclusion  and 
degradation  of  an  entire  sex. 


542  JUBISFBUDfiNCE   LNT   &XGLAKD.  LECT.  JUl 


LECTURE  XII. 

SOVEREIGNTY. 

THE  historical  theories  commonly  received  among 
English  lawyers  have  done  so  much  harm  not  only  to 
the  study  of  law  but  to  the  study  of  history,  that  an 
account  of  the  origin  and  growth  of  our  legal  system, 
founded  on  the  examination  of  new  materials  and  the 
re-examination  of  old  ones,  is  perhaps  the  most 
urgently  needed  of  all  additions  to  English  knowledge. 
But  next  to  a  new  history  of  law,  what  we  most  re- 
quire is  a  new  philosophy  of  law.  If  our  country 
ever  gives  birth  to  such  a  philosophy,  we  shall  pro- 
bably owe  it  to  two  advantages.  The  first  of  them 
is  our  possession  of  a  legal  system  which  for  many 
purposes  may  be  considered  indigenous.  Our  na- 
tional pride,  which  has  sometimes  retarded  or  limited 
our  advance  in  juridical  enquiry,  has  kept  our  law 
singularly  pure  from  mixture  with  the  stream  of 
legal  rules  flowing  from  the  great  fountain  of  the 
Roman  Corpus  Juris,  and  thus,  when  we  place  it  in 
juxtaposition  with  any  other  European  legal  system, 


LECI.  xn.  THE   ANALYTICAL   JUK1STS.  843 

the  results  of  the  comparison  are  far  more  fruitful  of 
instruction  than  those  obtained  by  contrasting  the 
various  Continental  bodies  of  law  with  one  another. 
The  second  advantage  I  believe  to  consist  in  the 
growing  familiarity  of  Englishmen  with  the  investi- 
gations of  the  so-called  Analytical  Jurists,  of  whom 
the  most  considerable  are  Jeremy  Bentham  and  John 
Austin.  Of  this  advantage  we  have  a  monopoly. 
.Bentham  seems  to  be  exclusively  known  in  France 
and  Germany  as  the  author  of  an  unpopular  system 
of  morals.  Austin  is  apparently  not  known  at  all. 
Yet  to  Bentham,  and  even  in  a  higher  degree  to 
Austin,  the  world  is  indebted  for  the  only  existing 
attempt  to  construct  a  system  of  jurisprudence  by 
strict  scientific  process  and  to  found  it,  not  on 
a  priori  assumption,  but  on  the  observation,  com- 
parison, and  analysis  of  the  various  legal  conceptions. 
There  is  not  the  smallest  necessity  for  accepting  all 
the  conclusions  of  these  great  writers  with  implicit 
deference,  but  there  is  the  strongest  necessity  for 
knowing  what  those  conclusions  are.  They  are  in- 
dispensable, if  for  no  other  object,  for  the  purpose  of 
clearing  the  head. 

An  important  distinction  between  Bentham  and 
Austin  is  not  as  often  recognised  as  it  ought  to  be. 
Bentham  in  the  main  is  a  writer  on  legislation. 
Austin  in  the  main  is  a  writer  on  jurisprudence. 
Bentham  is  chiefly  concerned  with  law  as  it  might  be 


844  BEXTHAM  AND  AUSTIN".  LECI.  xu, 

and  ought  to  be.  Austin  is  chiefly  concerned  with 
law  as  it  is.  Each  trespasses  occasionally  on  the 
domain  of  the  other.  Unless  Bentham  had  written 
the  treatise  called  the  *  Fragment  on  Government,' 
Austin's  '  Province  of  Jurisprudence  Determined,' 
which  sets  forth  the  basis  of  his  system,  would  never 
probably  have  been  composed.  On  the  other  hand, 
Austin,  in  his  singular  discussion  of  the  theory  of 
utility  as  an  index  to  the  Law  of  God,  has  entered  on 
an  investigation  of  the  class  followed  by  Bentham. 
Still  the  description  which  I  have  given  of  their 
objects  is  sufficiently  correct  as  a  general  description, 
and  those  objects  are  widely  different.  Bentham 
aims  at  the  improvement  of  the  law  to  be  effected  by 
the  application  of  the  principles  now  indissolubly 
associated  with  his  name.  Almost  all  of  his  more  im- 
portant suggestions  have  been  adopted  by  the  Eng- 
lish Legislature,  but  the  process  of  engrafting  on  the 
law  what  to  each  successive  generation  seem  to  be 
improvements  is  in  itself  of  indefinite  duration,  and 
may  go  on,  and  possibly  will  go  on,  as  long  as  the 
human  race  lasts.  Austin's  undertaking  is  more 
modest.  It  would  be  completed,  if  a  Code  were 
produced  perfectly  logical  in  order  of  arrangement 
and  perfectly  lucid  in  statement  of  rule.  Jurispru- 
dence, the  science  of  positive  law,  is  sometimes  spoken 
of  nowadays  as  if  it  would  bring  the  substance  of 
the  law  into  a  state  of  indefinite  perfection.  It  would 


LBCT.  xii.     AUSTIN'S   PROVINCE   OF  JURISPRUDENCE.  34« 

doubtless,  if  it  were  carried  far,  lead  indirectly  to 
great  legal  reforms  by  dispelling  obscurities  and  dis- 
sipating delusions,  but  the  investigation  of  the  prin- 
ciples on  which  the  direct  improvement  of  substantive 
legal  rules  snould  be  conducted  belongs  nevertheless 
not  to  the  theorist  on  jurisprudence  but  to  the 
theorist  on  legislation. 

The  portion  of  Austin's  Lectures  which  sets  forth 
the  basis  of  his  system,  and  which  was  published 
several  years  ago  as  the  'Province  of  Jurisprudence 
Determined,'  has  long  been  one  of  the  higher  class- 
books  in  this  University  ;  and,  taken  together  with 
the  other  lectures  more  recently  given  to  the  world 
(though  unhappily  in  a  fragmentary  shape),  it  must 
always,  or  for  a  long  time  to  come,  be  the  mainstay 
of  the  studies  prosecuted  in  this  Department.  Making 
the  utmost  acknowledgment  of  the  value  of  the  book, 
I  find  it  impossible  not  to  recognise  the  magnitude  of 
the  difficulties  which  it  occasions  to  the  beginner. 
Those  which  have  their  origin  in  peculiarities  of  style 
and  which  seem  to  be  attributable  to  the  perpetual 
commerce  of  thought  in  which  the  writer  lived  with 
his  precursors,  Bentham  and  Hobbes,  I  find  to  be 
practically  less  grave  than  difficulties  of  another  sort 
which  arise  from  the  repulsion  created  in  the  mind  by 
the  shape  in  which  the  conceptions  of  law,  right,  and 
duty  are  presented  to  it  by  Austin's  analysis.  Of 
course,  so  far  as  this  distaste  is  caused  by  unpalatable 


346  NATURE   OF  AUSTIN'S  POSITIONS.          LECT.  xn. 

truth,  any  tenderness  shown  to  it  would  be  wasted ; 
but  even  thus  it  is  a  misfortune,  and,  if  it  be  in  any 
degree  provoked  by  avoidable  causes,  such  as  methods 
of  statement  or  arrangement,  no  pains  bestowed  on 
the  attempt  to  remove  it  to  this  extent  would  be 
thrown  away.  A  very  frequent  effect  of  forcing  on 
students  of  active  mind  and  industrious  habits  a 
system  or  subject  which  for  some  reason  or  other  is 
repugnant  to  them  is  to  make  them  regard  it  as  so 
much  dogma,  as  something  resting  on  the  personal 
authority  of  the  writer  with  whose  name  it  happens 
to  be  associated.  Now  nothing  could  be  more  unfor- 
tunate for  the  philosophy  of  law  than  that  the  sys- 
tem of  the  '  Province  of  Jurisprudence  Determined  ' 
should  come  to  be  regarded  simply  as  Austin's  sys- 
tem— as  standing  by  the  side  of  Blackstone's  or 
Hegel's  or  any  other  system — as  interchangeable  with 
it  or  equivalent  to  it.  For,  when  certain  assumptions 
or  postulates  have  been  made,  I  am  fully  convinced 
that  the  great  majority  of  Austin's  positions  follow 
as  of  course  and  by  ordinary  logical  process.  These 
assumptions  do  not  appear  to  me  to  be  stated 
and  described  by  Austin  with  sufficient  fulness 
— possibly  because,  though  he  is  a  comparatively 
modern  writer,  a  part  of  the  enquiries  necessary  for 
such  statement  had  in  his  day  been  barely  com- 
menced— but,  whatever  the  cause,  the  result  is  that 
he  seems  to  me  open  to  the  same  charge  as  some  of 


LECT.  in.  SOVEREIGNTY.  347 

the  greatest  writers  on  Political  Economy  who  have 
omitted  to  set  forth  at  the  outset  with  adequate  dis- 
tinctness the  limited  objects  of  their  science,  and 
who  have  thus  attracted  to  it  a  mass  of  prejudice  of 
which  it  may  never  possibly  get  rid.  The  present 
Lecture  is  an  attempt  to  show  what  a  certain 
number  of  these  assumptions  or  postulates  are ;  in 
that  which  follows  it,  I  endeavour  to  show  how  these 
assumptions  are  affected  by  some  conclusions  which 
we  have  arrived  at  in  former  Lectures  during  our 
investigation  of  the  early  history  of  society.  (Supra, 
Lectures  I.  to  XL)  I  think  it  best  for  my  purpose 
to  begin  with  calling  attention  to  the  definition  of 
Sovereignty.  Beyond  all  doubt  this  is  the  logical 
order  of  the  discussion  undertaken  by  Austin,  and  I 
find  it  difficult  to  understand,  except  on  one  hypo- 
thesis, why,  deserting  the  arrangement  of  Hobbes,  he 
began  the  discussion  of  this  part  of  his  subject  by  the 
analysis  of  Law,  Right  and  Duty,  and  ended  it  with  an 
account  of  Sovereignty  which  it  seems  to  me  should 
have  come  first.  I  imagine,  however,  that  Blackstone 
influenced  him,  as  he  did  Bentham,  so  to  speak,  by 
repulsion.  Blackstone,  following  Roman  Institutional 
writers,  begins  with  a  definition  of  law  and  proceeds 
to  give  a  theory  of  the  connection  of  the  various  legal 
conceptions.  The  desire  to  expose  the  fallacies  of 
this  portion  of  the  Commentaries  furnished  Bentham 
with  his  principal  motive  for  writing  the  Fragment 


348  AUSTIN'S  DEFINITIONS.  LECT.  xn, 

on  Government,  and  Austin  with  his  chief  induce- 
ment to  determine  the  Province  of  Jurisprudence, 
and  the  latter  seems  to  me  to  have  thought  that  the 
propositions  he  disputed  would  be  most  effectually 
disposed  of,  if  they  were  contradicted  in  the  order 
given  them  by  their  author.  However  that  may  be, 
the  branch  of  my  subject  on  which  I  shall  first  have 
to  enter  may  be  described  as  an  enquiry  into  the 
probable  mode  in  which  Austin's  analysis  would 
have  been  affected,  if  he  had  begun  in  his  first  Lec- 
ture with  the  examination'  of  the  nature  of  Sove- 
reignty. This  examination  he  placed  in  the  Sixth, 
which,  so  far  as  the  *  Province  of  Jurisprudence '  is 
concerned,  is  the  last  of  his  Lectures. 

I  believe  I  may  assume  that  most  of  my  hearers 
are  familiar  with  the  general  character  of  the  investi- 
gation prosecuted  by  Austin  in  the  Treatise  to  which 
I  have  referred,  but,  as  his  definitions  are  not  easily 
carried  in  the  memory  in  their  complete  shape,  I  will 
give  his  descriptions  of  an  Independent  Political  So- 
ciety and  of  Sovereignty,  the  two  conceptions  being 
interdependent  and  inseparable  from  one  another. 

'If  (he  says)  a  determinate  human  superior,  not 
in  the  habit  of  obedience  to  a  like  superior,  receive 
habitual  obedience  from  the  bulk  of  a  given  society, 
that  determinate  superior  is  Sovereign  in  that  society, 
and  the  society,  including  the  superior,  is  a  society 
political  and  independent.' 


LECT.  xn.      INDEPENDENT  POLITICO   COMMUNITIES.  CIS 

He  then  proceeds  :  '  To  that  determinate  superior 
the  other  members  of  the  society  are  subject ;  or  on 
that  determinate  superior  the  other  members  of  the 
society  are  dependent.  The  position  of  its  other 
members  towards  that  determinate  superior  is  a  state 
of  subjection  or  a  state  of  dependence.  The  mutual 
relation  which  subsists  between  that  superior  and 
them,  may  be  styled  the  relation  of  Sovereign  and 
Subject,  or  the  relation  of  Sovereignty  and  Subjec- 
tion.' 

I  may  perhaps  save  the  necessity  for  part  of  the 
amplification  and  explanation  of  these  definitions  con- 
tained in  the  Chapter  in  which  they  occur,  if  I  state 
Austin's  doctrine  of  Sovereignty  in  another  way — 
more  popularly,  though  without,  I  think,  any  sub- 
stantial inaccuracy.  It  is  as  follows :  There  is,  in 
every  independent  political  community — that  is,  in 
every  political  community  not  in  the  habit  of  obe- 
dience to  a  superior  above  itself — some  single  person 
or  some  combination  of  persons  which  has  the  power 
of  compelling  the  other  members  of  the  community 
to  do  exactly  as  it  pleases.  This  single  person  or 
group — this  individual  or  this  collegiate  Sovereign 
(to  employ  Austin's  phrase) — maybe  found  in  every 
independent  political  community  as  certainly  as  the 
centre  of  gravity  in  a  mass  of  matter.  If  the  com- 
munity be  violently  or  voluntarily  divided  into  a 
number  of  separate  fragments,  then,  as  soon  as 


350  THE   FORMS   OF   GOVERNMENT.  IECT.  xn. 

each  fragment  has  settled  down  (perhaps  after  an 
interval  of  anarchy)  into  a  state  of  equilibrium,  the 
Sovereign  will  exist  and  with  proper  care  will  be 
discoverable  in  each  of  the  now  independent  por- 
tions. The  Sovereignty  over  the  North  American 
Colonies  of  Great  Britain  had  its  seat  in  one  place 
before  they  became  the  United  States,  in  another 
place  afterwards  ;  but  in  both  cases  there  was  a  dis- 
coverable Sovereign  somewhere.  This  Sovereign,  this 
person  or  combination  of  persons,  universally  oc- 
curring in  all  independent  political  communities,  has 
in  all  such  communities  one  characteristic,  common  to 
all  the  shapes  Sovereignty  may  take,  the  possession  of 
irresistible  force,  not  necessarily  exerted  but  capable 
of  being  exerted.  According  to  the  terminology  pre- 
ferred by  Austin,  the  Sovereign,  if  a  single  person,  is 
or  should  be  called  a  Monarch;  if  a  small  group, 
the  name  is  an  Oligarchy  ;  if  a  group  of  considerable 
dimensions,  an  Aristocracy ;  if  very  large  and  nu- 
merous, a  Democracy.  Limited  Monarchy,  a  phrase 
perhaps  more  fashionable  in  Austin's  day  than  it  is 
now,  is  abhorred  by  Austin,  and  the  Government  of 
Great  Britain  he  classes  with  Aristocracies.  That 
which  all  the  forms  of  Sovereignty  have  in  common 
is  the  power  (the  power  but  not  necessarily  the  will) 
to  put  compulsion  without  limit  on  subjects  or  fel- 
low-subjects. It  is  sometimes  extremely  difficult  to 
discover  the  Sovereign  in  a  given  State,  and,  when  he 


IECT.  xn.  THE   SOVEREIGN  DETERMINATE.  361 

or  it  is  discovered,  he  may  fall  under  no  recognised 
designation,  but,  where  there  is  an  independent 
political  society  not  in  a  condition  of  anarchy,  the 
Sovereign  is  certainly  there.  The  question  of  deter- 
mining his  character  is,  you  will  understand,  always 
a  question  of  fact.  It  is  never  a  question  of  law  or 
morals.  He  who,  when  a  particular  person  or  group 
is  asserted  to  constitute  the  Sovereign  in  a  given 
community,  denies  the  proposition  on  the  ground 
that  such  Sovereignty  is  an  usurpation  or  a  viola- 
tion of  constitutional  principle,  has  completely  missed 
Austin's  point  of  view. 

The  definitions  which  I  read  from  the  Sixth  Lec- 
ture furnish  Austin's  tests  for  discovering  the  seat 
of  Sovereignty  in  independent  states.  I  will  again 
refer  to  a  few  of  the  most  important  of  them,  though 
very  briefly. 

First,  the  Sovereign  is  a  determinate  human  supe- 
rior. He  is  not  necessarily  a  single  person  ;  in  the 
modern  Western  world  he  is  very  rarely  so ;  but  he 
must  have  so  much  of  the  attributes  of  a  single  per- 
son as  to  be  determinate.  If  he  is  not  a  single  person, 
he  must  be  a  number  of  persons  capable  of  acting  in 
a  corporate  or  collegiate  capacity.  This  part  of  the 
definition  is  absolutely  necessary,  since  the  Sovereign 
must  effect  his  exertions  of  power,  must  issue  his 
orders,  by  a  definite  exercise  of  his  will.  The  pos- 
session of  physical  power,  which  is  one  characteristic 


862  THE   OBEDIENCE   OF   SUBJECTS.  LECT.  xn 

of  Sovereignty,  has  as  matter  of  historical  fact  re- 
peatedly been  for  a  time  in  the  hands  of  a  number  of 
persons  not  determinate,  not  so  connected  together  as 
to  be  capable  of  exercising  volition,  but  such  a  state 
of  things  Austin  would  call  anarchy,  though  it  might 
not  have  all  the  usually  recognised  symptoms  of  a 
revolutionary  interval.  At  the  same  time,  the  limi- 
tation of  Sovereignty  to  determinate  groups,  when 
the  Sovereign  is  not  an  individual,  is  extremely  im- 
portant, since  it  qualifies  the  notion  of  Sovereignty  by 
rendering  it  subject  to  the  various  artifices  by  which 
an  exercise  of  volition  is  elicited  from  a  corporate 
body.  Familiar  to  us  as  is  the  practice  of  taking  the 
opinion  of  a  majority  as  the  opinion  of  an  entire 
group,  and  natural  as  it  seems,  nothing  can  be  more 
artificial. 

Again,  the  bulk  of  the  society  must  obey  the 
superior  who  is  to  be  called  Sovereign.  Not  the 
whole  of  the  society,  for  in  that  case  Sovereignty 
would  be  impossible,  but  the  bulk,  the  large  majority, 
must  obey.  After  the  accession  of  the  House  of 
Hanover  to  the  British  throne,  a  certain  number  of 
Jacobites  and  a  considerable  portion  of  the  Scottish 
Highlanders  habitually  disobeyed  or  disregarded  the 
commands  of  the  British  Crown  and  Parliament,  but 
the  bulk  of  the  nation,  including  no  doubt  the  bulk 
of  the  Jacobites  themselves,  gave  to  these  commands 
a  practical  obedience.  On  Austin's  principles,  there- 


LECT.  xrr.  HABITUAL   OBEDIENCE.  353 

fore,  there  is  not  the  least  ground  for  questioning 
the  Sovereignty  of  George  the  First  and  Second  and 
of  the  Parliaments  elected  at  their  summons.  The 
Jacobite  view,  that  the  Hanoverian  Kings  were  ex- 
clusively Sovereign  in  Hanover,  would  at  once  be 
thrown  aside  by  Austin  as  not  raising  that  question 
of  fact  which  is  alone  disputable  under  his  system. 

Next,  the  Sovereign  must  receive  an  habitual 
obedience  from  the  bulk  of  the  community.  In 
European  societies  professing  the  Roman  Catholic 
faith,  the  great  majority  of  the  population  receives  a 
variety  of  directions  on  points  of  personal  conduct, 
either  mediately  or  immediately,  from  the  See  of 
Rome.  But,  compared  with  the  number  of  times  it 
submits  itself  to  the  laws  of  the  country  it  inhabits, 
its  obedience  to  these  extrinsic  commands  is  only 
occasional,  and  not  habitual.  At  the  same  time  a 
dim  appreciation  of  the  principles  brought  into  light 
by  Austin  may  be  detected  in  several  famous  eccle- 
siastical controversies,  which  sometimes  tend  to  be- 
come disputes  whether  the  obedience  to  the  St-e  of 
Rome  which  is  actually  paid  is  or  is  not  so  frequent 
as  to  fall  under  the  description  of  habitual. 

A  further  characteristic  of  Sovereignty  is  immu- 
nity from  the  control  of  every  other  human  superior. 
The  limitation  is  obviously  necessary,  for  otherwise 
the  Governor-General  of  India  in  Council  would  be 
Sovereign,  and  indeed  would  exhibit  a  closer  corres- 

A  A 


354  BOSSES.  LECT.  xu 

pondence  with  the  more  salient  features  of  Sove- 
reignty than  almost  any  other  potentate  on  the  face 
of  the  globe. 

Those  who  have  observed  with  what  slowness 
definite  conceptions  are  developed  in  the  field  of  his- 
tory and  politics  will  be  prepared  to  hear  that  this 
whole  view  of  the  nature  of  Sovereignty  is  older  than 
Austin's  work.  But,  so  far  as  my  own  knowledge 
extends,  I  do  not  think  that  any  material  portion  of 
it  is  older  than  Hobbes.  On  the  other  hand,  in  the 
Leviathan  of  Hobbes  and  in  the  Chapter  De  Give  in 
his  Treatise  first  published  in  Latin,  called  the 
Elementa  Philosophic,  the  analysis  of  Government 
and  Society  and  the  determination  of  Sovereignty 
are  so  nearly  completed  that  little  could  be  added  to 
them  by  Bentham  and  Austin.  The  originality  of 
these  later  writers,  and  more  particularly  of  Austin, 
resides  in  their  much  fuller  examination  of  the  con- 
ceptions dependent  on  the  notion  of  Sovereignty — 
positive  law,  positive  duty,  sanction  and  right — in 
setting  forth  the  relations  of  these  conceptions  to 
others  superficially  resembling  them,  in  combating 
objections  to  the  theory  by  which  the  entire  group  of 
notions  are  connected  together,  and  in  applying  this 
theory  to  certain  complex  states  of  fact  which  had 
arisen  since  Hobbes  wrote.  There  is,  however,  one 
great  difference  between  Hobbes  and  his  latest  suc- 
cessor. The  process  of  Hobbes  was  scientific,  but 


1BCT.  xn.          POLITICAL   OPINIONS   OF   HOBBES.  355 

his  object  was  less  scientific  than  political.  When, 
with  a  keenness  of  intuition  and  lucidity  of  statement 
which  have  never  been  rivalled,  he  has  made  out  a 
case  for  the  universal  theoretical  existence  of  Sove- 
reignty, it  becomes  clear  that  he  has,  to  say  the 
least,  a  strong  preference  for  monarchies  over  aris- 
tocracies and  democracies,  or  (to  use  the  p*hraseology 
of  the  school  which  he  founded)  for  individual  over 
corporate  Sovereignty.  Those  of  his  intellectual 
followers  who  would  have  repudiated  his  politics 
have  often  asserted  that  he  has  been  misunderstood, 
and  no  doubt  some  superficial  readers  have  supposed 
that  he  was  pointing  at  despotism  when  he  was  really 
referring  to  the  essentially  unqualified  power  of  the 
Sovereign  whatever  the  form  of  the  Sovereignty. 
But  I  do  not  think  it  can  in  candour  be  denied  that 
his  strong  dislike  of  the  Long  Parliament  and  of  the 
English  Common  law,  as  the  great  instrument  of 
resistance  to  the  Stuart  Kings,  has  occasionally  co- 
loured the  language  which  he  uses  in  examining  the 
nature  of  Sovereignty,  Law,  and  Anarchy ;  nor  is  it 
matter  for  surprise  that  he  should  have  been  charged 
during  his  life  with  having  devised  his  system  with 
the  secret  intention  of  making  his  peace  with  the  Pro- 
tector, though  the  accusation  itself  is  sufficiently 
refuted  by  dates.  But  Austin's  object  is  strictly 
scientific.  If  he  has  fallen  into  errors,  he  has  been 
led  into  them  by  his  philosophy,  and  his  language 

A  A  2 


353  HOBBES   ON  THE   OKIGIN   OF   SOCIETY.      LECT,  TH, 

scarcely   ever   betrays   the   colour   of    his    political 
opinions. 

Another  considerable  difference  is  this.  Hobbes, 
it  is  well  known,  speculated  on  the  origin  of  Govern- 
ment and  Sovereignty.  It  is  the  one  fact  which 
some  persons  seem  to  have  learned  about  him,  and 
they  appear  to  think  his  philosophy  sufficiently  con- 
demned by  it.  But  Austin  barely  enters  on  this 
enquiry ;  and  indeed  he  occasionally,  though  perhaps 
inadvertently,  uses  language  which  almost  seems  to 
imply  that  Sovereignty  and  the  conceptions  depen- 
dent on  it  have  an  CL  priori  existence.  Now  in  this 
matter  I  myself  hold  that  the  method  of  Hobbes 
was  correct.  It  is  true  that  nothing  can  be  more 
worthless  in  itself  than  Hobbes's  conjectural  account 
of  the  origin  of  society  and  government.  Mankind, 
he  asserts,  were  originally  in  a  state  of  war.  They 
then  made  a  compact  under  which  every  man 
abandoned  his  powers  of  aggression,  and  the  result 
was  Sovereignty,  and  through  Sovereignty  law,  peace, 
and  order.  The  theory  is  open  to  every  sort  of 
objection.  There  is  no  evidence  of  any  stage  of  the 
supposed  history,  and  the  little  we  know  of  primitive 
man  contradicts  it,  The  universal  disorder  of  the 
race  in  its  infancy  may  be  true  of  the  contests  of 
tribe  with  tribe  and  of  family  with  family ;  but  it  is 
not  true  of  the  relations  of  individual  man  with  in- 
dividual man,  whom  we,  on  the  contrary,  first  discern 


IECT.  in.        ASSERTIONS   OF  ANALYTICAL  JURISTS.  35? 

living  together  under  a  regimen  which,  if  we  are 
compelled  to  employ  modern  phraseology,  we  must 
call  one  of  ultra-legality.  And,  in  addition,  the 
theory  is  open  to  precisely  the  same  objection  as  the 
counter-hypothesis  of  Locke,  that  it  antedates  the 
modem  juridical  conception  of  Contract.  But  still  I 
think  that  Hobbes  did  correctly  in  addressing  him- 
self to  the  problem,  though  he  did  little  to  solve  it. 
The  duty  of  enquiring,  if  not  how  Sovereignty  arose, 
at  all  events  through  what  stages  it  has  passed,  is  in 
my  judgment  indispensable.  It  is  only  thus  that  we 
can  assure  ourselves  in  what  degree  the  results  of 
the  Austinian  analysis  tally  with  facts. 

There  is,  in  truth,  nothing  more  important  to  the 
student  of  jurisprudence  than  that  he  should  carefully 
consider  how  far  the  observed  facts  of  human  nature 
and  society  bear  out  the  assertions  which  are  made 
or  seem  to  be  made  about  Sovereignty  by  the  Ana- 
lytical Jurists.  To  begin  with,  these  assertions  must 
be  disentangled  from  one  another.  The  first  of  them 
is  that,  in  every  independent  community  of  men,  there 
resides  the  power  of  acting  with  irresistible  force  on 
the  several  members  of  that  community.  This  may 
be  accepted  as  actual  fact.  If  all  the  members 
of  the  community  had  equal  physical  strength  and 
were  unarmed,  the  power  would  be  a  mere  result 
from  the  superiority  of  numbers ;  but,  as  a  matter  of 
fact,  various  causes,  of  which  much  the  most  import- 


338  THE   FORCE   OF   SOCIETY.  LECX.  xrr. 

ant  have  been  the  superior  physical  strength  and 
the  superior  armament  of  portions  of  the  com- 
munity have  conferred  on  numerical  minorities  the 
power  of  applying  irresistible  pressure  to  the  indi- 
viduals who  make  up  the  community  as  a  whole. 
The  next  assertion  is  that,  in  every  independent 
political  community,  that  is  in  every  independent 
community  neither  in  a  state  of  nature  on  the  one 
hand  nor  in  a  state  of  anarchy  on  the  other,  the 
power  of  using  or  directing  the  irresistible  force 
stored-up  in  the  society  resides  in  some  person  or 
combination  of  persons  who  belong  to  the  society 
themselves.  The  truth  of  this  assertion  is  strongly 
suggested  by  a  certain  class  of  facts,  particularly  by 
the  political  facts  of  the  Western  and  Modern  world ; 
but  all  the  relevant  facts,  it  must  be  recollected,  have 
not  been  fully  observed.  The  whole  world,  of  which 
theorists  on  human  nature  are  extremely  apt  to  for- 
get considerably  more  than  half,  and  the  entire  history 
of  the  whole  world,  would  have  to  be  examined  before 
we  could  be  quite  sure  of  the  facts,  and,  if  this  were 
done,  it  may  be  that  a  great  number  of  the  facts  would 
not  so  strongly  suggest  the  conclusion,  or,  as  I  my- 
self think,  the  assertion  which  we  are  considering 
would  not  so  much  be  shown  to  be  false  as  to  be  only 
verbally  true,  and  therefore  without  the  value  which 
it  possesses  in  societies  of  the  type  to  which  our  own 
belongs.  An  assertion,  however,  which  the  great 


uxrr.  ill.  SOVEREIGNTY   AX   ABSTRACTION.  359 

Analytical  Jurists  cannot  be  charged  with  making, 
but  which  some  of  their  disciples  go  very  near  to 
hazarding,  that  the  Sovereign  person  or  group  actu- 
ally wields  the  stored-up  force  of  society  by  an  uncon- 
trolled exercise  of  will,  is  certainly  never  in  accord- 
ance with  fact.  A  despot  with  a  disturbed  brain  is 
the  sole  conceivable  example  of  such  Sovereignty. 
The  vast  mass  of  influences,  which  we  may  call  for 
shortness  moral,  perpetually  shapes,  limits  or  forbids 
the  actual  direction  of  the  forces  of  society  by  its 
Sovereign.  This  is  the  point  which,  of  all  others,  it 
is  practically  most  necessary  that  the  student  should 
bear  in  mind,  because  it  does  most  to  show  what  the 
Austinian  view  of  Sovereignty  really  is — that  it  is 
the  result  of  Abstraction.  It  is  arrived  at  by  throw- 
ing aside  all  the  characteristics  and  attributes  of 
Government  and  Society  except  one,  and  by  con- 
necting all  forms  of  political  superiority  together 
through  their  common  possession  of  force.  The  ele- 
ments neglected  in  the  process  are  always  important, 
sometimes  of  extreme  importance,  for  they  consist  of 
all  the  influences  controlling  human  action  except 
force  directly  applied  or  directly  apprehended ;  but 
the  operation  of  throwing  them  aside  for  purposes  of 
classification  is,  I  need  hardly  say,  perfectly  legiti- 
mate philosophically,  and  is  only  the  application  of  a 
method  in  ordinary  scientific  use. 

To  put  the  same  thing  in  another  way,  that  which 


3GO         ELIMINATION   OF   HISTORICAL   INFLUENCES.   LECT.  Hi- 

we  reject  in  the  process  of  abstraction  by  which  the 
conception  of  Sovereignty  is  reached  is  the  entire 
history  of  each  community.  First  of  all,  it  is  the 
history,  the  whole  historical  antecedents,  of  each 
society  by  which  it  has  been  determined  where,  in 
what  person  or  group,  the  power  of  using  the  social 
force  is  to  reside.  The  theory  of  Sovereignty  neglects 
the  mode  in  which  the  result  has  been  arrived  at, 
and  thus  is  enabled  to  class  together  the  coercive 
authority  of  the  great  King  of  Persia,  of  the  Athe- 
nian Demos,  of  the  later  Roman  Emperors,  of  the 
Russian  Czar,  and  of  the  Crown  and  Parliament  of 
Great  Britain.  Next,  it  is  its  history,  the  entire  mass 
of  its  historical  antecedents,  which  in  each  commu- 
nity determines  how  the  Sovereign  shall  exercise  or 
forbear  from  exercising  his  irresistible  coercive  power. 
All  that  constitutes  this — the  whole  enormous  aggre- 
gate of  opinions,  sentiments,  beliefs,  superstitions,  and 
prejudices,  of  ideas  of  all  kinds,  hereditary  and  ac- 
quired, some  produced  by  institutions  and  some  by 
the  constitution  of  human  nature — is  rejected  by  the 
Analytical  Jurists.  And  thus  it  is  that,  so  far  as  the 
restrictions  contained  in  their  definition  of  Sove- 
reignty are  concerned,  the  Queen  and  Parliament  of 
our  own  country  might  direct  all  weakly  children  to 
be  put  to  death  or  establish  a  system  of  lettres  de 
cachet. 

The  procedure  of  the  Analytical  Jurists  is 


LECT.  xn.  ABSTRACT   SCIENCES.  361 

analogous  to  that  followed  in  mathematics  an  I  poli- 
tical economy.  It  is  strictly  philosophical,  but  the 
practical  value  of  all  sciences  founded  on  abstractions 
depends  on  the  relative  importance  of  the  elements 
rejected  and  the  elements  retained  in  the  process  of 
abstraction.  Tried  by  this  test,  mathematical  science 
is  of  greatly  more  value  than  political  economy,  and 
both  of  them  than  jurisprudence  as  conceived  by  the 
writers  I  am  criticising.  Similarly,  the  misconcep- 
tions to  which  the  Austinian  analysis  gives  rise  are 
very  similar  to  those  which  might  be  conceived  as 
embarrassing  the  student  of  mixed  mathematics,  and 
which  do  actually  embarrass  the  student  of  political 
economy.  Just  as  it  is  possible  to  forget  the  exist- 
ence of  friction  in  nature  and  the  reality  of  other 
motives  in  society  except  the  desire  to  grow  rich,  so 
the  pupil  of  Austin  may  be  tempted  to  forget  that 
there  is  more  in  actual  Sovereignty  than  force,  and 
more  in  laws  which  are  the  commands  of  sovereigns 
than  can  be  got  out  of  them  by  merely  considering 
them  as  regulated  force.  I  am  not  prepared  to  deny 
that  Austin  occasionally,  and  Hobbes  frequently,  ex- 
press themselves  as  if  their  system,  were  not  limited 
throughout  by  the  limitation  which  is  at  its  base. 
All  the  great  masters  of  Abstraction  are,  in  fact,  now 
and  then  betrayed  into  speaking  or  writing  as  if  the 
materials  thrown  aside  in  the  purely  mental  process 
were  actually  dross. 


362  LAW  DEPENDENT   ON   SO   EREIGNTY.       LECT.  in. 

When,  however,  it  has  once  been  seen  that  in 
Austin's  system  the  determination  of  Sovereignty 
ought  to  precede  the  determination  of  Law,  when  it 
is  once  understood  that  the  Austinian  conception  of 
Sovereignty  has  been  reached  through  men  tally  uniting 
all  forms  of  government  in  a  group  by  conceiving  them 
as  stripped  of  every  attribute  except  coercive  force, 
and  when  it  is  steadily  borne  in  mind  that  the  deduc- 
tions from  an  abstract  principle  are  never  from  the 
nature  of  the  case  completely  exemplified  in  facts, 
not  only,  as  it  seems  to  me,  do  the  chief  difficulties 
felt  by  the  student  of  Austin  disappear,  but  some 
of  the  assertions  made  by  him  at  which  the  beginner 
is  most  apt  to  stumble  have  rather  the  air  of  self- 
evident  propositions.  1  dare  say  you  are  sufficiently 
acquainted  with  his  treatise  to  make  it  enough  for  me 
to  mention  some  of  these  propositions,  without  the 
amplifications  which  are  necessary  for  their  perfectly 
accurate  statement.  Jurisprudence  is  the  science  of 
Positive  Law.  Positive  Laws  are  Commands,  ad- 
dressed by  Sovereigns  to  their  Subjects,  imposing 
a  Duty,  or  condition  of  obligedness,  or  obligation, 
on  those  Subjects,  and  threatening  a  Sanction,  or 
Penalty,  in  the  event  of  disobedience  to  the  Command. 
A  Right  is  the  faculty  or  power  conferred  by  the 
Sovereign  on  certain  members  of  the  community  to 
draw  down  the  sanction  on  a  fellow-subject  violating 
a  Duty.  Now  all  these  conceptions  of  Law,  Right, 


IECT.  in.  CUSTOMARY  LAW.  803 

Duty  and  Punishment  depend  upon  the  primary  con- 
ception of  Sovereignty,  just  as  the  lower  links  of  a 
chain  hanging  down  depend  upon  the  highest  link.  But 
Sovereignty,  for  the  purposes  of  Austin's  system,  has 
no  attribute  but  force,  and  consequently  the  view  here 
taken  of  '  law,'  '  obligation  '  and  '  right '  is  a  view  of 
them  regarded  exclusively  as  products  of  coercive 
force.  The  '  sanction '  thus  becomes  the  primary  and 
most  important  member  of  the  series  of  notions  and 
gives  its  colour  to  all  the  others.  Probably  nobody 
ever  found  a  difficulty  in  allowing  that  laws  have  the 
character  given  to  them  by  Austin,  so  far  as  such  laws 
have  proceeded  from  formal  Legislatures.  But  many 
persons,  and  among  them  some  men  of  powerful 
mind,  have  struggled  against  the  position  that  the 
great  mass  of  legal  rules  which  have  never  been  pre- 
scribed by  the  organ  of  State,  conventionally  known 
as  the  Legislature,  are  commands  of  the  Sove- 
reign. The  customary  law  of  all  countries  which 
have  not  included  their  law  in  Codes,  and  specially 
the  English  Common  law,  have  often  had  an  origin 
claimed  for  them  independently  of  the  Sovereign,  and 
theories  have  been  propounded  on  the  subject  which 
Austin  scouts  as  mysterious  and  unintelligible.  The 
way  in  which  Hobbes  and  he  bring  such  bodies  of 
rules  as  the  Common  law  under  their  system  is  by 
insisting  on  a  maxim  which  is  of  vital  importance  to 
it — 'Whatever  the  Sovereign  permits,  he  commands.' 


o04  PERMISSION   AND   COMMAND.  JJKCT  xu 

Until  customs  are  enforced  by  Courts  of  Justice, 
they  are  merely  '  positive  morality,'  rules  enforced  by 
opinion,  but,  as  soon  as  Courts  of  Justice  enforce 
them,  they  become  commands  of  the  Sovereign,  con- 
veyed through  the  Judges  who  are  his  delegates  or 
deputies.  It  is  a  better  answer  to  this  theory  than 
Austin  would  perhaps  have  admitted  that  it  is 
founded  on  a  mere  artifice  of  speech,  and  that  it 
assumes  Courts  of  Justice  to  act  in  a  way  and  from 
motives  of  which  they  are  quite  unconscious.  But, 
when  it  is  clearly  comprehended  that,  in  this  system, 
there  are  no  associations  with  the  Sovereign  but  force 
or  power,  the  position  that  what  Sovereigns  permit 
they  command  becomes  more  easily  intelligible. 
They  command  because,  being  by  the  assumption 
possessed  of  uncontrollable  force,  they  could  innovate 
without  limit  at  any  moment.  The  Common  law 
consists  of  their  commands  because  they  can  repeal 
or  alter  or  re-state  it  at  pleasure.  The  theory  is 
perfectly  defensible  as  a  theory,  but  its  practical  value 
and  the  degree  in  which  it  approximates  to  truth  differ 
greatly  in  different  ages  and  countries.  There  have 
been  independent  political  communities,  and  indeed 
there  would  still  prove  to  be  some  of  them  if  the  world 
were  thoroughly  searched,  in  which  the  Sovereign, 
though  possessed  of  irresistible  power,  never  dreams 
of  innovation,  and  believes  the  persons  or  groups,  by 
whom  laws  are  declared  and  applied,  to  be  as  much 


LECT.  xn.       LIMITATIONS   OF   AUSTIXIAJf  THEORY.  860 

part  of  the  necessary  constitution  of  society  as  he  is 
himself.  There  have  again  been  independent  po- 
litical societies  in  which  the  Sovereign  has  enjoyed 
irresistible  coercive  power  and  has  carried  innovation 
to  the  farthest  point;  but  in  which  every  single  asso- 
ciation connected  with  law  would  have  violence  done 
to  it  if  laws  were  regarded  as  his  commands.  The 
Tyrant  of  a  Greek  city  often  satisfied  every  one  of  Aus- 
tin's tests  of  Sovereignty ;  yet  it  was  part  of  the  ac- 
cepted definition  of  a  Tyrant  that  '  he  subverted  the 
laws.'  Let  it  be  understood  that  it  is  quite  possible  to 
make  the  theory  fit  in  with  such  cases,  but  the  process 
is  a  mere  straining  of  language.  It  is  carried  on  by 
taking  words  and  propositions  altogether  out  of  the 
sphere  of  the  ideas  habitually  associated  with  them. 

Before  proceeding  to  speak  at  some  length  in  my 
next  Lecture  of  these  historical  limitations  on  the 
practical  value  of  Austin's  theories,  let  me  repeat  my 
opinion  that  if  the  method  of  discussion  which  seerns 
to  me  correct  had  been  followed  in  his  treatise,  and  if 
the  examination  of  Sovereignty  had  preceded  the  ex- 
amination of  the  conceptions  dependent  on  it,  a  con- 
siderable number  of  the  statements  which  he  has 
made  respecting  these  latter  conceptions  would  have 
appeared  not  merely  innocent  but  self-evident.  Law 
is  here  regarded  as  regulated  force,  simply  because 
force  is  the  one  element  which  has  been  allowed  to 
enter  into  the  primary  notion  upon  which  all  the 


866  AUSTIN  ON  MORALITY.  uct.  xir. 

others  depend.  The  one  doctrine  of  this  school  of 
jurists  which  is  repugnant  to  lawyers  would  lose  its 
air  of  paradox  if  an  assumption  were  made  which,  in 
itself  theoretically  unobjectionable,  manifestly  ap- 
proximates to  practical  truth  as  the  course  of  history 
proceeds — the  assumption  that  what  the  Sovereign 
might  alter,  but  does  not  alter,  he  commands.  The 
same  arrangement  would  have  a  further  advantage, 
as  it  seems  to  me,  through  the  modifications  it  would 
necessitate  in  Austin's  manner  of  discussing  Morality, 
though  the  subject  is  not  one  which  can  be  here 
treated  with  completeness.  The  position  at  which 
many  readers  have  stumbled — I  do  not  affect  to  do 
more  than  state  it  in  popular  language — is  that  the 
sanction  of  moral  rules,  as  such,  is  the  disapprobation 
which  one's  fellow-men  manifest  at  their  violation. 
It  is  sometimes  construed  to  mean  that  the  only 
motive  for  obeying  moral  rules  is  the  fear  of  such 
disapprobation.  Such  a  construction  of  Austin's  lan- 
guage is  an  entire  misconception  of  his  meaning ; 
but,  if  the  order  of  discussion  which  I  advocate  had 
been  followed,  I  do  not  think  it  could  ever  possibly 
occur  to  any  mind.  Let  us  suppose  Austin  to  have 
completed  his  analysis  of  Sovereignty  and  of  the  con- 
ceptions immediately  dependent  on  it,  law,  legal 
right,  and  legal  obligation.  He  would  then  have  to 
examine  that  great  mass  of  rules,  which  men  in  fact 
obey,  which  have  some  of  the  characteristics  of  laws, 


LECT.  xn.  THEORY   OF   MORALITY.  887 

but  which  are  not  (as  such)  imposed  by  Sovereigns  on 
subjects,  and  which  are  not  (as  such)  enforced  by  the 
sanction  supplied  by  Sovereign  power.  It  would  be, 
of  course,  incumbent  on  the  philosophical  jurist  to 
examine  these  rules,  because  Sovereigns  being  by  his 
hypothesis  human  superiors  are,  as  human  beings, 
subject  to  them.  Austin  has,  in  fact,  examined  them 
from  this  point  of  view  in  some  of  his  most  in- 
teresting passages.  While  insisting  that  Sovereignty 
is  from  tne  nature  of  the  case  incapable  of  legal 
limitation,  ne  fully  admits  that  Sovereigns  are  re- 
strained from  issuing  some  commands  and  deter- 
mined to  issue  others  by  rules  which,  though  they 
are  not  laws,  are  of  extreme  cogency.  The  Crown 
and  Parliament  of  Great  Britain  are  in  his  view  Sove- 
reign— a  sovereign  aristocracy,  as  he  would  call  it — 
but,  though  this  aristocracy  could  for  purposes  of 
argument  do  anything  it  pleased,  it  would  be  out- 
raging all  experience  to  assert  that  it  does  this. 
That  great  body  of  rules  which  is  embodied  in  con- 
stitutional maxims  keeps  it  from  doing  some  things ; 
that  great  body  of  rules  which  in  ordinary  usage  are 
called  moral  keeps  it  from  doing  others.  What  com- 
mon characteristics  has  this  aggregate  of  rules  which 
operate  on  men  and  on  Sovereigns,  like  other  men? 
Austin,  as  you  know,  names  it  *  positive  morality/  and 
sayg  that  its  sanction  is  opinion,  or  the  disapproval 
of  the  bulk  of  the  community  following  on  its  viola- 


388  AUSTINS   ETHICAL   CREED.  LECT.  ra. 

tion.  Properly  understood,  this  last  is  an  obviously 
true  proposition,  for  what  is  meant  is  that  public 
disapprobation  is  the  one  sanction  which  all  these 
rules  have  in  common.  The  rule  which  keeps  the 
Crown  and  Parliament  from  declaring  murder  legal, 
and  the  rule  which  keeps  them  from  allowing  the 
Queen  to  govern  without  Ministers,  are  connected 
together  through  the  penalty  attendant  on  a  breach 
of  them,  which  is  the  strong  disapprobation  of  a 
majority  of  Englishmen ;  and  it  is  their  having  a 
sanction  of  some  kind  which  principally  connects 
both  rules  with  laws  proper.  But,  though  fear  of 
opinion  be  a  motive  for  obedience  to  both  rules,  it 
does  not  at  all  follow  that  the  sole  motive  for  obedi- 
ence to  both  rules  is  fear  of  opinion.  This  fear 
would  be  allowed  by  most  people  to  be  the  chief,  if 
not  the  exclusive,  motive  for  obedience  to  consti- 
tutional rules ;  but  such  an  admission  involves  no 
necessary  assertion  whatever  as  to  the  complete 
sanction  of  moral  rules.  The  truth  is  that  Austin's 
system  is  consistent  with  any  ethical  theory ;  and,  if 
Austin  seems  to  assert  the  contrary,  I  think  the 
cause  is  to  be  sought  in  his  firm  conviction  of  the 
truth  of  his  own  ethical  creed,  which,  I  need  not  say, 
was  Utilitarianism  in  its  earlier  shape.  I  do  not,  in- 
deed, for  a  moment  intend  to  deny  that  the  careful 
study  of  Austin  would  probably  modify  the  student's 
view  of  morals.  The  discussion  of  ethics,  like  many 


LECT.  XIT.  AUSTIN   ON   LAW  OF   GOD.  869 

others,  is  conducted  amid  much  obscurity  of  thought, 
and  there  is  no  specific  more  sovereign  for  dispelling 
such  obscurity  than  the  association  of  the  cardinal 
terms  which  enter  into  our  enquiry  with  absolutely 
consistent  meanings,  and  the  employment  of  the 
terms  with  these  meanings  as  a  test  for  the  detection 
of  equivocal  phraseology.  It  is  the  one  inestimable 
service  of  the  Analytical  School  to  jurisprudence  and 
morals  that  it  furnishes  them  with  a  rigidly  con- 
sistent terminology.  But  there  is  not  the  faintest 
reason  for  thinking  that  the  intelligent  and  apprecia- 
tive student  of  the  system  must  necessarily  be  an 
utilitarian. 

I  shall  state  hereafter  what  I  believe  to  be  the 
true  point  of  contact  between  Austin's  system  and 
the  utilitarian  philosophy.  Meantime,  devotion  to 
this  philosophy,  coupled  with  what  I  hold  to  be  a 
faulty  arrangement,  has  produced  the  most  serious 
blemish  in  the  Province  of  Jurisprudence  Deter- 
mined. The  2nd,  3rd,  and  4th  Lectures  are  occu- 
pied with  an  attempt  to  identify  the  law  of  God  and 
the  law  of  Nature  (so  far  as  these  last  words  can  be 
allowed  to  have  any  meaning)  with  the  rules  re- 
quired by  the  theory  of  utility.  The  lectures  contain 
many  just,  interesting,  and  valuable  observations; 
but  the  identification,  which  is  their  object,  is  quite 
gratuitous  and  valueless  for  any  purpose.  Written, 
I  doubt  not,  in  the  honest  belief  that  they  would 

B  B 


3VO  AUSTIN   ON   LAW   OF   GOD.  LECT.  xn 

lielp  to  obviate  or  remove  prejudices,  they  have 
attracted  to  Austin's  system  a  whole  cloud  of  preju- 
dices both  from  the  theological  and  from  the  philo- 
sophical side.  If,  however,  following  the  order  I 
have  suggested,  Austin,  after  concluding  the  exami- 
nation of  the  nature  of  Sovereignty  and  of  positive 
law,  had  entered  on  an  enquiry  into  the  nature  of  the 
laws  of  God,  it  must  have  taken  the  form  of  an  in- 
vestigation of  the  question  how  far  the  characteristics 
of  the  human  superiors  called  Sovereigns  can  be  sup- 
posed to  attach  to  an  all-powerful  and  non-human 
ruler,  and  how  many  of  the  conceptions  dependent 
on  human  Sovereignty  must  be  considered  as  con- 
tained in  his  commands.  I  much  doubt  whether 
such  an  enquiry  would  have  seemed  called  for  in  a 
treatise  like  Austin's.  Taken  at  its  best,  it  is  a  dis- 
cussion belonging  not  to  the  philosophy  of  law  but  to 
the  philosophy  of  legislation.  The  jurist,  properly 
so  called,  has  nothing  to  do  with  any  ideal  standard 
of  law  or  morals. 


LBCT.  iin.  FOIiCE   AND    ORDEK.  871 


LECTURE  XIII. 

SOVEREIGNTY   AND   EMPIRE. 

THE  word  '  law'  has  come  down  to  us  in  close  asso- 
ciation with  two  notions,  the  notion  of  order  and  the 
notion  of  force.  The  association  is  of  considerable 
antiquity  and  is  disclosed  by  a  considerable  variety 
of  languages,  and  the  problem  has  repeatedly  sug- 
gested itself,  which  of  the  two  notions  thus  linked 
together  is  entitled  to  precedence  over  the  other, 
which  of  them  is  first  in  point  of  mental  conception? 
The  answer,  before  the  Analytical  Jurists  wrote, 
would  on  the  whole  have  been  that  4  law '  before  all 
things  implied  order.  4Law,  in  its  most  general  and 
comprehensive  sense,  signifies  a  rule  of  action,  and  is 
applied  indiscriminately  to  all  kinds  of  action,  whether 
animate  or  inanimate,  rational  or  irrational.  Thus 
we  say,  the  laws  of  motion,  of  gravitation,  of  optics 
or  mechanics,  as  well  as  the  laws  of  nature  and  of 
nations.'  With  these  words  Blackstone  begins  that 
Chapter  on  'the  Nature  of  Laws  in  General,'  whicli 
may  almost  be  said  to  have  made  Bentham  and 

BBS 


872  PRIORITY   OF   ORDER   OR   FORCE.          LECT.  xm, 

Austin  into  Jurists  by  virtue  of  sheer  repulsion. 
The  Analytical  Jurists,  on  the  other  hand,  lay  down 
unhesitatingly  that  the  notion  of  force  has  priority 
over  the  notion  of  order.  They  say  that  a  true  law, 
the  command  of  an  irresistible  Sovereign,  enjoins  a 
class  of  acts  or  a  class  of  omissions  either  on  a  subject 
or  on  a  number  of  subjects,  placed  by  the  command 
alike  and  indifferently  under  a  legal  obligation.  The 
characteristic  which  thus  as  a  matter  of  fact  attaches 
to  most  true  laws  of  binding  a  number  of  persons, 
taken  indifferently,  to  a  number  of  acts  or  omissions, 
determined  generally,  has  caused  the  term  '  law '  to 
be  extended  by  metaphor  to  all  uniformities  or  inva- 
riable successions  in  the  physical  world,  in  the  opera- 
tions of  the  mind,  or  in  the  actions  of  mankind.  Law 
when  used  in  such  expressions  as  the  Law  of  Gravity, 
the  Law  of  Mental  Association,  or  the  Law  of  Bent, 
is  treated  by  the  Analytical  Jurists  as  a  word  wrested 
from  its  true  meaning  by  an  inaccurate  figurative 
extension,  and  the  sort  of.  disrespect  with  which 
they  speak  of  it  is  extremely  remarkable.  But  I 
suppose  that,  if  dignity  and  importance  can  properly 
be  attributed  to  a  word,  there  are  in  our  day  few 
words  more  dignified  and  more  important  than  Law, 
in  the  sense  of  the  invariable  succession  of  pheno- 
mena, physical,  mental,  or  even  politico- economical. 
With  this  meaning,  *  law '  enters  into  a  great  deal  of 
modern  thought,  and  has  almost  become  the  condi- 


LECT.  xra.  ORIGINAL   MEANING   OF   '  LAW.'  873 

tion  of  its  being  carried  on.  It  is  difficult  at  first 
to  believe  that  such  an  expression  as  i  the  Reign 
of  Law,'  in  the  sense  in  which  the  words  have  been 
popularised  by  the  Duke  of  Argyll's  book,  would 
have  been  strongly  disliked  by  Austin ;  but  his 
language  leaves  little  doubt  on  the  point,  and  more 
than  once  reminds  us  that,  though  his  principal 
writings  are  not  much  more  than  forty  years  old,  he 
wrote  before  men's  ideas  were  leavened  to  the  present 
depth  by  the  sciences  of  experiment  and  observation. 
The  statement  that,  in  all  languages,  Law  primarily 
means  the  command  of  a  Sovereign,  and  has  been 
applied  derivatively  to  the  orderly  sequences  of  Nature 
is  extremely  difficult  of  verification;  and  it  may  be 
doubted  whether  its  value,  if  it  be  true,  would  repay 
the  labour  of  establishing  its  truth.  The  difficulty 
would  be  the  greater  because  the  known  history  of 
philosophical  and  juridical  speculation  shows  us  the 
two  notions,  which  as  a  matter  of  fact  are  associated 
with  Law,  acting  and  reacting  on  one  another.  The 
order  of  Nature  has  unquestionably  been  regarded  as 
determined  by  a  Sovereign  command.  Many  persons 
to  whom  the  pedigree  of  much  of  modern  thought  is 
traceable,  conceived  the  particles  of  matter  which 
make  up  the  universe  as  obeying  the  commands  of  a 
personal  God  just  as  literally  as  subjects  obey  the 
commands  of  a  sovereign  through  fear  of  a  penal 
sanction.  On  the  other  hand,  the  contemplation  of 


374  LAW  IN7   A  JURIDICAL  SENSE.  user.  xm. 

order  in  the  external  world  has  strongly  influenced 
the  view  taken  of  laws  proper  by  much  of  the  civi- 
lised part  of  mankind.  The  Roman  theory  of  a  Law 
Natural  has  affected  the  whole  history  of  law,  and 
this  famous  theory  is  in  fact  compounded  of  two 
elements,  one  furnished  by  an  early  perception,  Greek 
in  origin,  of  a  certain  order  and  regularity  in  physical 
nature,  and  the  other  attributable  to  an  early  percep- 
tion, Roman  in  origin,  of  a  certain  order  and  unifor- 
mity among  the  observances  of  the  human  race.  I 
need  not  here  repeat  the  proof  of  this  which  I  at- 
tempted to  give  in  a  volume  published  some  years 
ago.  Nobody  is  at  liberty  to  censure  men  or  com- 
munities of  men  for  using  words  in  any  sense  they 
please,  or  with  as  many  meanings  as  they  please, 
but  the  duty  of  the  scientific  enquirer  is  to  dis- 
tinguish the  meanings  of  an  important  word  from 
one  another,  to  select  the  meaning  appropriate  to 
his  own  purposes,  and  consistently  to  employ  the 
word  during  his  investigations  in  this  sense  and  no 
other.  The  laws  with  which  the  student  of  Jurispru- 
dence is  concerned  in  our  own  day  are  undoubtedly 
either  the  actual  commands  of  Sovereigns,  understood 
as  the  portion  of  the  community  endowed  with  irre- 
sistible coercive  force,  or  else  they  are  practices  of 
mankind  brought  under  the  formula  '  a  law  is  a  com- 
mand,' by  help  of  the  formula,  '  whatever  the  Sove- 
reign permits,  is  his  command.'  From  the  point  of 


LLCT.  xni.  EARLY   CONCEPTIONS   OF   LAW.  875 

view  of  the  Jurist,  law  is  only  associated  with  order 
through  the  necessary  condition  of  every  true  law 
that  it  must  prescribe  a  class  of  acts  or  omissions,  or 
a  number  of  acts  and  omissions  determined  generally ; 
the  law  which  prescribes  a  single  act  not  being  a  true 
law,  but  being  distinguished  as  an  '  occasional '  or 
4 particular'  command.  Law,  thus  defined  and  limited, 
is  the  subject-matter  of  Jurisprudence  as  conceived 
by  the  Analytical  Jurists.  At  present  we  are  only 
concerned  with  the  foundations  of  their  system ;  and 
the  questions  which  I  wish  to  raise  in  the  present 
Lecture  are  these  :  has  the  force  which  compels  obedi- 
ence to  a  law  always  been  of  such  a  nature  that  it 
can  reasonably  be  identified  with  the  coercive  force  of 
the  Sovereign,  and  have  laws  always  been  character- 
ised by  that  generality  which,  it  is  said,  alone  con- 
nects them  with  physical  laws  or  general  formulas 
describing  the  facts  of  nature  ?  These  enquiries  may 
seem  to  you  to  lead  us  far  afield,  but  I  trust  you 
will  perceive  in  the  end  that  they  have  interest  and 
importance,  and  that  they  throw  light  on  the  limits 
which  must  be  assigned  in  certain  cases,  not  to  the 
theoretical  soundness,  but  to  the  practical  value,  of 
the  speculations  we  have  been  discussing. 

Let  me  recur  to  Sovereignty,  as  conceived  by  the 
Analytical  Jurists.  The  readers  of  Austin's  treatise 
will  remember  his  examination  of  a  number  of 
existing  governments  or  (as  he  would  say),  forms  of 


376        GROWING   COMPLEXITY   OF   GOVERNMENTS.    LECT.  xni. 

political  superiority  and  inferiority,  for  the  purpose  of 
determining  the  exact  seat  of  sovereignty  in  each  of 
them.  This  is  among  the  most  interesting  parts  of 
his  writings,  and  his  sagacity  and  originality  are  no- 
where more  signally  demonstrated.  The  problem  had 
become  much  more  complex  than  it  was  when  Hobbes 
wrote,  and  even  than  it  was  at  the  date  of  Bentharn's 
earlier  publications.  Hobbes,  a  partisan  in  England, 
was  a  keen  scientific  observer  of  the  political  pheno- 
mena of  the  Continent,  and  there  the  political  condi- 
tions open  to  his  observation  were  (putting  England 
aside)  practically  limited  to  despotism  and  anarchy. 
But,  by  the  time  Austin  wrote,  England,  probably 
considered  by  Hobbes  as  the  ground  on  which  the 
battle  of  his  principles  was  to  be  fought  out,  had 
long  since  become  a  'limited  monarchy,'  an  expression 
disliked  by  Hobbes'  successors  almost  as  much  as  the 
thing  was  by  Hobbes  himself,  and  moreover  the  in- 
fluences of  the  first  French  Revolution  were  begin- 
ning to  have  their  play.  France  had  lately  become 
a  limited  monarchy,  and  almost  all  the  other  Conti- 
nental States  had  given  signs  of  becoming  so.  The 
complex  political  mechanism  of  the  United  States 
had  arisen  on  the  other  side  of  the  Atlantic,  and  the 
even  more  complicated  systems  of  the  German  and 
Swiss  Confederations  in  Continental  Europe.  The 
analysis  of  political  societies,  for  the  purpose  of  deter- 
mining the  seat  of  sovereignty,  had  obviously  become 


LTJCI.  xin.  STATE   OF   ANARCHY.  377 

much  more  difficult,  and  nothing  can  exceed  the  pe- 
netration evinced  by  Austin  in  applying  this  analysis 
to  extant  examples. 

Nevertheless  Austin  fully  recognises  the  existence 
of  communities,  or  aggregates  of  men,  in  which  no 
dissection  could  disclose  a  person  or  group  answering 
to  his  definition  of  a  Sovereign.  In  the  first  place, 
like  Hobbes,  he  fully  allows  that  there  is  a  state  of 
anarchy.  Wherever  such  a  state  is  found,  the  ques- 
tion of  Sovereignty  is  being  actively  fought  out,  and 
the  instance  given  by  Austin  is  that  which  was  never 
absent  from  Hobbes's  mind,  the  struggle  between 
Charles  the  First  and  his  Parliament.  An  acute 
critic  of  Hobbes  and  Austin,  whom  I  am  permitted  to 
identify  with  Mr.  Fitzjames  Stephen,  insists  that 
there  is  a  condition  of  dormant  anarchy,  and  the 
reservation  is  doubtless  made  to  meet  such  cases  as 
that  of  the  United  States  before  the  War  of  Seces- 
sion. Here  the  seat  of  sovereignty  was  for  years 
the  subject  of  violent  dispute  in  words  or  on  paper, 
and  many  eminent  Americans  acquired  fame  by 
measures  which  compromised  for  a  time  a  notorious 
difference  of  principle,  and  adjourned  a  struggle 
which  was  nevertheless  inevitable.  It  is  in  fact 
quite  possible  that  there  may  be  deliberate  ab- 
stinence from  fighting  out  a  question  known  to  be 
undecided,  and  I  see  no  objection  to  calling  the  tem- 
porary equilibrium  thus  produced  a  state  of  dormant 


378  THE   STATE   OF   NATUKE.  LECT.  xin 

anarchy.  Austin  further  admits  the  theoretical 
possibility  of  a  state  of  nature.  He  does  not  attach 
to  it  the  importance  which  belongs  tc  it  in  the  specu- 
lations of  Hobbes  and  others,  but  he  allows  its  exist- 
ence wherever  a  number  of  men,  or  of  groups  not 
numerous  enough  to  be  political,  have  not  as  yet  been 
brought  under  any  common  or  habitually  acting 
authority.  And,  in  speaking  in  this  last  sentence  of 
groups  not  numerous  enough  to  be  political,  I  have 
introduced  the  most  remarkable  exception  allowed  by 
Austin  to  the  rule  that  Sovereignty  is  universal 
among  mankind.  The  passage  occurs  at  p.  237  of 
the  first  volume  of  the  third  edition: — 

'  Let  us  suppose  that  a  single  family  of  savages 
lives  in  absolute  estrangement  from  every  other  com- 
munity. And  let  us  suppose  that  the  father,  the 
chief  of  this  insulated  family,  receives  habitual 
obedience  from  the  mother  and  children.  Now, 
since  it  is  not  a  limb  of  another  and  larger  commu- 
nity, the  society  formed  by  the  parents  and  children, 
is  clearly  an  independent  society,  and,  since  the  rest 
of  its  members  habitually  obey  its  chief,  this  indepen- 
dent society  would  form  a  society  political,  in  case 
the  number  of  its  members  were  not  extremely  minute. 
But,  since  the  number  of  its  members  is  extremely 
minute,  it  would,  I  believe,  be  esteemed  a  society  in 
a  state  of  nature ;  that  is,  a  society  consisting  of  per- 
sons not  in  a  state  of  subjection.  Without  an  appli- 


LECT.  im.     NO   SOVEREIGN   IN  VERY  SMALL   GROUP.          37Q 

cation  of  the  terms,  which  would  somewhat  smack  of 
the  ridiculous,  we  could  hardly  style  the  society  a 
society  political  and  independent,  the  imperative 
father  and  chief  a  monarch  or  sovereign,  or  the 
obedient  mother  and  children  subjects.1 

And  then  Austin  quotes  from  Montesquieu  the 
doctrine  that '  Political  power  necessarily  implies  the 
union  of  several  families.' 

The  effect  of  this  passage  then  is  that  a  society 
may  be  too  small  to  admit  of  the  application  of  the 
theory.  The  employment,  Austin  says,  of  his  ter- 
minology would  be  ridiculous  in  such  a  case.  I  be- 
lieve I  shall  be  able  to  point  out  to  you  the  significance 
of  this  appeal  to  our  sense  of  absurdity,  generally  a 
a  most  dangerous  criterion  ;  but  at  present  I  merely 
ask  you  to  note  the  seriousness  of  the  admission, 
since  the  form  of  authority  about  which  it  is  made,  the 
authority  of  the  Patriarch  or  Paterfamilias  over  his 
family,  is,  at  least  according  to  one  modern  theory, 
the  element  or  germ  out  of  which  all  permanent  power 
of  man  over  man  has  been  gradually  developed. 

There  are,  however,  another  set  of  cases,  known 
to  us  from  sources  of  knowledge  of  which  it  is  per- 
haps fair  to  say  that  (though  Austin  is  in  one  sense  a 
modern  writer)  they  were  hardly  open  when  he  wrote 
— cases  in  which  the  application  of  his  principles  is  at 
least  difficult  and  doubtful.  It  is  from  no  special 
love  of  Indian  examples  that  I  take  one  from  India, 


380  THE   PUNJAUB.  LECT.  xm 

but  because  it  happens  to  be  the  most  modern  pre- 
cedent in  point.  My  instance  is  the  Indian  Province 
called  the  Punjaub,  the  Country  of  the  Five  Rivers, 
in  the  state  in  which  it  was  for  about  a  quarter  of  a 
century  before  its  annexation  to  the  British  Indian 
Empire.  After  passing  through  every  conceivable 
phase  of  anarchy  and  dormant  anarchy,  it  fell  under 
the  tolerably  consolidated  dominion  of  a  half-military, 
half-religious  oligarchy,  known  as  the  Sikhs.  The 
Sikhs  themselves  were  afterwards  reduced  to  subjec- 
tion by  a  single  chieftain  belonging  to  their  order, 
Runjeet  Singh.  At  first  sight,  there  could  be  no  more 
perfect  embodiment  than  Runjeet  Singh  of  Sove- 
reignty, as  conceived  by  Austin.  He  was  absolutely 
despotic.  Except  occasionally  on  his  wild  frontier,  he 
kept  the  most  perfect  order.  He  could  have  com- 
manded anything ;  the  smallest  disobedience  to  his 
commands  would  have  been  followed  by  death  or  muti- 
lation, and  this  was  perfectly  well  known  to  the  enor- 
mous majority  of  his  subjects.  Yet  I  doubt  whether 
once  in  all  his  life  he  issued  a  command  which  Austin 
would  call  a  law.  He  took,  as  his  revenue,  a  prodi- 
gious share  of  the  produce  of  the  soil.  He  harried 
villages  which  recalcitrated  at  his  exactions,  and  he 
executed  great  numbers  of  men.  He  levied  great 
armies  ;  he  had  all  material  of  power,  and  exercised 
it  in  various  ways.  But  he  never  made  a  law.  The 
rules  which  regulated  the  life  of  his  subjects  were 


LECT.  xm.  RUXJEET  SINGH.  881 

derived  from  their  immemorial  usages,  and  these 
rules  were  administered  by  domestic  tribunals,  in 
families  or  village-communities — that  is,  in  groups  no 
larger  or  little  larger  than  those  to  which  the  appli- 
cation of  Austin's  principles  cannot  be  effected,  on 
his  own  admission,  without  absurdity. 

I  do  not  for  a  moment  assert  that  the  existence 
of  buch  a  state  of  political  society  falsifies  Austin's 
theory,  as  a  theory.  The  great  maxim  by  which  ob- 
jections to  it  are  disposed  of  is,  as  I  have  so  often 
said  before,  'What  the  Sovereign  permits,  he  com- 
mands.' The  Sikh  despot  permitted  heads  of  house- 
holds and  village-elders  to  prescribe  rules,  therefore 
these  rules  were  his  commands  and  true  laws.  Now 
we  can  see  that  an  answer  of  this  kind  might  have 
some  force  if  it  were  made  to  an  English  lawyer  who 
denied  that  the  Sovereign  in  England  had  ever  com- 
manded the  Common  law.  The  Crown  and  Parliament 
command  it,  because  the  Crown  and  Parliament  permit 
it;  and  the  proof  that  they  permit  it  is  that  they  could 
change  it.  As  a  matter  of  fact,  since  the  objection 
was  first  advanced,  the  Common  law  has  been 
largely  encroached  upon  by  Act  of  Parliament,  and, 
in  our  own  day,  it  is  possible  that  it  may  come  to  owe 
the  whole  of  its  binding  force  to  statute.  But  my 
Oriental  example  shows  that  the  difficulty  felt  by  the 
old  lawyers  about  the  Common  law  may  have  once 
deserved  more  respect  than  it  obtained  from  Hobbea 


382  RUNJEET   SINGH.  LICT.  xin 

and  his  successors.  Runjeet  Singh  never  did  or 
could  have  dreamed  of  changing  the  civil  rules  under 
which  his  subjects  lived.  Probably  he  was  as  strong 
a  believer  in  the  independent  obligatory  force  of  such 
rules  as  the  elders  themselves  who  applied  them. 
An  Eastern  or  Indian  theorist  in  law,  to  whom  the 
assertion  was  made  that  Runjeet  Singh  commanded 
these  rules,  would  feel  it  stinging  him  exactly  in  that 
sense  of  absurdity  to  which  Austin  admits  the  appeal 
to  be  legitimate.  The  theory  remains  true  in  such  a 
case,  but  the  truth  is  only  verbal. 

You  must  not  suppose  that  I  have  been  indulging 
in  a  merely  curious  speculation  about  a  few  extreme 
cases  to  which  the  theory  of  Sovereignty,  and  of  Law 
founded  on  it,  will  not  apply  without  straining  of 
language.  In  the  first  place,  the  Punjaub  under 
Runjeet  Singh  may  be  taken  as  a  type  of  all  Oriental 
communities  in  their  native  state,  during  their  rare 
intervals  of  peace  and  order.  They  have  ever  been 
despotisms,  and  the  commands  of  the  despots  at  their 
head,  harsh  and  cruel  as  they  might  be,  have  always 
been  implicitly  obeyed.  But  then  these  commands, 
save  in  BO  far  as  they  served  to  organise  administra- 
tive machinery  for  the  collection  of  revenue,  have  not 
been  true  laws ;  they  have  been  of  the  class  called  by 
Austin  occasional  or  particular  commands.  The  truth 
is  that  the  one  solvent  of  local  and  domestic  usage  in 
those  parts  of  the  world  of  which  we  have  any  real 


LBCT.  xin.         AXCIEXT   STATE   OP   THE   WORLD.  883 

knowledge  has  been  not  the  command  of  the  Sove- 
reign but  the  supposed  command  of  the  Deity.  In 
India,  the  influence  of  the  Brahminical  treatises  on 
mixed  law  and  religion  in  sapping  the  old  customary 
law  of  the  country  has  always  been  great,  and  in 
some  particulars,  as  I  tried  to  explain  on  a  former 
occasion,  it  has  become  greater  under  English  rule. 

It  is  important  to  observe  that,  for  the  purposes 
of  the  present  enquiry,  the  state  of  political  society 
which  I  have  described  as  Indian  or  Oriental  is  a  far 
more  trustworthy  clue  to  the  former  condition  of  the 
greatest  part  of  the  world  than  is  the  modern  social 
organisation  of  Western  Europe,  as  we  see  it  before 
our  eyes.  It  is  a  perhaps  not  unreasonable  impres- 
sion that  Sovereignty  was  simpler  and  more  easily 
discovered  in  the  ancient  than  in  the  modern  world. 
The  critic  of  Hobbes  and  Austin,  whom  I  before 
quoted,  writes,  l  in  every  state  of  which  we  read, 
whether  Greek,  Phoenician,  Italian,  or  Asiatic,  there 
was  a  Sovereign  of  some  sort  whose  authority  was  ab- 
solute while  it  lasted;'  and  he  adds  that,  4 if  Hobbes 
had  tried  to  write  an  imaginary  history  of  mankind 
he  could  not  have  constructed  one  better  fitted  for 
his  purpose  than  the  history  of  the  foundation  and 
establishment  of  the  Roman  Empire.'  I  put  aside 
for  awhile  the  consideration  of  the  Roman  Empire, 
and  my  reasons  for  doing  so  will  become  apparent 
afterwards;  but,  if  we  give  our  attention  to  empires 


884  ANCIENT   EMPIRES.  user,  xrn, 

at  all  resembling  that  of  the  Romans  in  territorial 
extent,  we  shall  find  that,  properly  understood,  they 
are  very  far  from  corresponding  to  the  Great  Levia- 
than imagined  by  Hobbes.  We  know  something  of 
the  Assyrian  and  Babylonian  empires  from  Jewish 
records,  and  something  of  the  Median  and  Persian 
Empires  from  Greek  records.  We  learn  from  these 
that  they  were  in  the  main  tax-taking  empires.  We 
know  that  they  raised  enormous  revenues  from  their 
subjects.  We  know  that,  for  occasional  wars  of  con- 
quest, they  levied  vast  armies  from  populations  spread 
over  immense  areas.  We  know  that  they  exacted 
the  most  implicit  obedience  to  their  occasional  com- 
mands, or  punished  disobedience  with  the  utmost 
cruelty.  We  know  that  the  monarchs  at  their  head 
were  constantly  dethroning  petty  kings  and  even 
transplanting  whole  communities.  But  amid  all  this, 
it  is  clear  that  in  the  main  they  interfered  but  little 
with  the  every  day  religious  or  civil  life  of  the  groups 
to  which  their  subjects  belonged.  They  did  not  legis- 
late. The  '  royal  statute  '  and  '  firm  decree  '  which 
has  been  preserved  to  us  as  a  sample  of  '  law  of  the 
Medes  and  Persians  which  altereth  not '  is  not  u  law 
at  all  in  the  modern  juridical  acceptation  of  the  term. 
It  is  what  Austin  would  call  a  '  particular  command,' 
a  sudden,  spasmodic,  and  temporary  interference  with 
ancient  multifarious  usage  left  in  general  undisturbed. 
What  is  even  more  instructive  is  that  the  famous 


LECT.  xin.          LIMITS    OF   ANALYTICAL    SYSTEM.  3S'> 

Athenian  Empire  belonged  to  the  same  class  of  sove- 
reignties as  the  Empire  of  the  Great  King.  The 
Athenian  Assembly  made  true  laws  for  residents  on 
Attic  territory,  but  the  dominion  of  Athens  over  her 
subject  cities  and  islands  was  clearly  a  tax-taking 
as  distinguished  from  a  legislating  Empire. 

The  difficulty  of  employing  Austin's  terminology 
of  these  great  governments  is  obvious  enough.  How- 
can  it  conduce  to  clear  thinking  to  speak  of  the 
Jewish  law  as  commanded  at  one  period  by  the 
Great  King  at  Susa  ?  The  cardinal  rule  of  the 
Analytical  Jurists,  '  what  the  Sovereign  permits,  he 
commands/  remains  verbally  true,  but  against  its 
application  in  such  a  case  there  lies  an  appeal  to  a 
higher  tribunal  of  which  Austin  allows  the  jurisdic- 
tion, our  sense  of  the  ridiculous. 

I  have  now  reached  the  point  at  which  I  can 
conveniently  state  my  own  opinion  of  the  practical 
limitations  which  must  be  given  to  the  system  of  the 
Analytical  Jurists,  in  order  that  it  may  possess,  I  will 
not  say  theoretical  truth,  but  practical  value.  The 
Western  world,  to  which  they  confined  their  atten- 
tion, must  be  conceived  as  having  undergone  two  sets 
of  changes.  The  States  of  modern  Europe  must  be 
conceived  as  having  been  formed  in  a  manner  dif- 
ferent from  the  great  empires  of  antiquity  (save 
one),  and  from  the  modern  empires  and  kingdoms  of 
the  East,  and  a  new  order  of  ideas  on  the  subject  of 

c  c 


386  ORIGINAL   COMMUNITIES.  LECT.  xirr 

legislation  must  be  conceived  as  having  been  intro- 
duced into  the  world  through  the  empire  of  the 
Romans.  Unless  these  changes  had  taken  place,  I  do 
not  believe  that  the  system  would  ever  have  been 
engendered  in  the  brain  of  its  authors.  Wherever 
these  changes  have  not  taken  place,  I  do  not  believe 
the  application  of  the  system  to  be  of  value. 

The  most  nearly  universal  fact  which  can  be 
asserted  respecting  the  origin  of  the  political  commu- 
nities called  States  is  that  they  were  formed  by  the 
coalescence  of  groups,  the  original  group  having  been 
in  no  case  smaller  than  the  patriarchal  family.  But 
in  the  communities  which  came  into  existence  before 
the  Roman  Empire,  and  in  those  which  have  been 
slightly  affected  by  it  or  not  at  all,  this  coalesce*^ 
was  soon  arrested.  There  are  some  traces  of  the 
process  everywhere.  The  hamlets  of  Attica  coalesce 
to  form  the  Athenian  State ;  and  the  primitive 
Roman  State  is  formed  by  the  coalescence  of  the 
minute  communities  on  the  original  hills.  In  very 
many  Indian  village-communities  there  are  signs 
of  smaller  elements  combining  to  make  them  up. 
But  this  earlier  coalescence  soon  stops.  In  a  later 
stage,  political  communities,  wearing  a  superficial 
resemblance  to  the  Roman  Empire,  and  often  of 
very  great  territorial  extent,  are  constructed  by  one 
community  conquering  another  or  one  chieften,  at 
the  head  of  a  single  community  or  tribe,  subjugat- 


LT5CT.  xm.         FORMATION   OF   MODERN  STATES.  887 

ing  greut  masses  of  population.  But,  independently 
of  the  Roman  Empire  and  its  influence,  the  separate 
local  life  of  the  small  societies  included  in  these 
great  States  was  not  extinguished  or  even  much  en- 
feebled. They  continued  as  the  Indian  village-com- 
munity has  continued,  and  indeed,  even  in  their  most 
glorious  forms,  they  belonged  essentially  to  that  type 
of  society.  But  the  process  of  change  by  which  the 
States  of  the  modern  world  were  formed  has  been 
materially  different  from  this.  The  smaller  groups 
have  been  much  more  completely  broken  up  and 
absorbed  in  the  larger,  the  larger  have  again  been 
swallowed  up  in  still  wider,  and  these  in  yet  wider 
areas.  Local  life  and  village  custom  have  not,  it  is 
true,  decayed  everywhere  in  the  same  degree.  There 
is  much  more  of  them  in  Russia  than  in  Germany ; 
more  of  them  in  Germany  than  in  England ;  more  of 
them  in  England  than  in  France.  But  on  the  whole, 
whenever  the  modern  State  is  formed,  it  is  an  as- 
semblage of  fragments  considerably  smaller  than 
those  which  made  up  empires  of  the  earlier  type, 
and  considerably  liker  to  one  another. 

It  would  be  rash  to  lay  down  confidently  which 
is  cause  and  which  is  consequence,  but  unquestion- 
ably this  completer  trituration  in  modern  societies  of 
the  groups  which  once  lived  with  an  independent 
life  has  proceeded  concurrently  with  much  greater 
activity  in  legislation.  Wherever  the  primitive  con- 

c  o  2 


3."  3  THE   VILLAGE   COUNCIL.  LECT.  xin. 

dition  of  an  Aryan  race  reveals  itself  either  through 
historical  records  or  through  tho  survival  of  its  an- 

o 

cient  institutions,  the  organ  which  in  the  elementary 
group  corresponds  to  what  we  call  the  legislature,  is 
everywhere  discernible.  It  is  the  Village  Council, 
sometimes  owning  a  responsibility  to  the  entire 
body  of  villagers,  sometimes  disclaiming  it,  some- 
times overshadowed  by  the  authority  of  an  hereditary 
chief,  but  never  altogether  obscured.  From  this 
embryo  have  sprung  all  the  most  famous  legislatures 
of  the  world,  the  Athenian  Ekklesia,  the  Roman 
Comitia,  Senate  and  Prince,  and  our  own  Parliament, 
the  type  and  parent  of  all  the  {  collegiate  sovereign- 
ties '  (as  Austin  would  call  them)  of  the  modern 
world,  or  in  other  words  of  all  governments  in  which 
sovereign  power  is  exercised  by  the  people  or  shared 
between  the  people  and  the  King.  Yet,  if  we  ex- 
amine the  undeveloped  form  of  this  organ  of  State, 
its  legislative  faculty  is  its  least  distinct  and  least 
energetic  faculty.  In  point  of  fact,  as  I  have  ob- 
served elsewhere,  the  various  shades  of  the  power 
lodged  with  the  Village  Council,  under  the  empire  of 
the  ideas  proper  to  it,  are  not  distinguished  from  one 
aricther,  nor  does  the  mind  see  a  clear  difference 
between  making  a  law,  declaring  a  law,  and  punish- 
ing an  offender  against  a  law.  If  the  powers  of  this 
body  must  be  described  by  modern  names,  that 
which  lies  most  in  the  background  is  legislative 


LKCT.  xm.     THE  PRIMITIVE  GROUPS  AND  LEGISLATION.        389 

power,  that  which  is  most  distinctly  conceived  is 
judicial  power.  The  laws  obeyed  are  regarded  as 
having  always  existed,  and  usages  really  new  are 
confounded  with  the  really  old. 

The  village-communities  of  the  Aryan  race  do 
not  therefore  exercise  true  legislative  power  so  long 
as  they  remain  under  primitive  influences.  Nor 
again  is  legislative  power  exercised  in  any  intelli- 
gible sense  of  the  words  by  the  Sovereigns  of  those 
great  States,  now  confined  to  the  East,  which  pre- 
serve the  primitive  local  groups  most  nearly  intact. 
Legislation,  as  we  conceive  it,  and  the  break  up  of 
local  life  appear  to  have  universally  gone  on  to- 
gether. Compare  the  Hindoo  village-community  in 
India  with  the  Teutonic  village-community  in  Eng- 
land. The  first  of  them,  among  all  the  institutions 
of  the  country  which  are  not  modern  and  of  British 
construction,  is  far  the  most  definite,  far  the  most 
strongly  marked,  far  the  most  highly  organised.  Of 
the  latter,  the  ancient  English  community,  the  ves- 
tiges may  certainly  be  tracked,  but  the  comparative 
method  has  to  be  called  in,  and  the  written  law  and 
written  history  of  many  centuries  searched,  before 
their  significance  can  be  understood  and  the  broken 
outline  restored  to  completeness.  It  is  impossible 
not  to  connect  the  differing  vitality  of  the  same  in- 
stitution with  certain  other  phenomena  of  the  two 
countries.  In  India,  Mogul  and  Mahratta  following 


890  THE   LAW  OF   THE  KING.  LBCT. 

a  long  series  of  earlier  conquerors,  have  swept  over 
the  village-communities,  but  after  including  them  in 
a  nominal  empire  they  have  imposed  no  permanent 
obligation  beyond  the  payment  of  tax  or  tribute.  If 
on  some  rare  occasions  they  have  attempted  the  en- 
forced religious  conversion  of  subjugated  populations, 
the  temples  and  the  rites  have  been  at  most  changed 
in  the  villages,  while  the  civil  institutions  have  been 
left  untouched.  Here  in  England  the  struggle  be- 
tween the  central  and  the  local  power  has  followed 
a  very  different  course.  We  can  see  plainly  that 
the  King's  law  and  the  King's  courts  have  been 
perpetually  contending  against  the  local  law  and  the 
local  courts,  and  the  victory  of  the  King's  law  has 
drawn  after  it  the  long  series  of  Acts  of  Parliament 
founded  on  its  principles.  The  whole  process  can 
only  be  called  legislation  ever  increasing  in  energy, 
until  the  ancient  multifarious  law  of  the  country 
has  been  all  but  completely  abolished,  and  the  old 
usages  of  the  independent  communities  have  degene- 
rated into  the  customs  of  manors  or  into  mere  habits 
having  no  sanction  from  law. 

There  is  much  reason  to  believe  that  the  Roman 
Empire  was  the  source  of  the  influences  which  have 
led,  immediately  or  ultimately,  to  the  formation 
of  highly-centralised,  actively-legislating,  States.  It 
was  the  first  great  dominion  which  did  not  merely 
tax,  but  legislated  also.  The  process  was  spread 


user.  XTII.  ROMAN    LEGISLATION.  391 

over  many  centuries.  If  I  had  to  fix  the  epochs  of 
its  commencement  and  completion,  I  should  place 
them  roughly  at  the  issue  of  the  first  Edictum 
Provinciate,  and  at  the  extension  of  the  Roman 
citizenship  to  all  subjects  of  the  empire,  but  no  doubt 
the  foundations  of  the  change  were  laid  considerably 
before  the  first  period,  and  it  was  continued  in  some 
ways  long  after  the  last.  But,  in  the  result,  a  vast 
and  miscellaneous  mass  of  customary  law  was  broken 
up  and  replaced  by  new  institutions.  Seen  in  this 
light,  the  Roman  Empire  is  accurately  described 
in  the  Prophecy  of  Daniel.  It  devoured,  brake  in 
pieces,  and  stamped  the  residue  with  its  feet. 

The  irruption  of  the  barbarian  races  into  the 
Empire  diffused  through  the  communities  included  in 
it  a  multitude  of  the  primitive  tribal  and  village 
ideas  which  they  had  lost.  Nevertheless  no  society 
directly  or  indirectly  influenced  by  the  Empire  has 
been  altogether  like  the  societies  formed  on  that  more 
ancient  system  which  the  immobility  of  the  East 
has  continued  till  we  can  actually  observe  it.  In  all 
commonwealths  of  the  first  kind,  Sovereignty  is  more 
or  less  distinctly  associated  with  legislative  power,  and 
the  direction  in  which  this  power  was  to  be  exercised 
was  in  a  considerable  number  of  countries  clearly 
chalked  out  by  the  jurisprudence  which  the  Empire 
left  behind  it.  The  Roman  law,  from  which  the 
most  ancient  legal  notions  had  been  almost  wholly 


S92  THE   FORCE   OF  LAW.  lEci.  xin. 

expelled,  was  palpably  the  great  solvent  of  local  usage 
everywhere.  There  are  thus  two  types  of  organised 
political  society.  In  the  more  ancient  of  these,  the 
great  bulk  of  men  derive  their  rules  of  life  from 
the  customs  of  their  village  or  city,  but  they  occa- 
sionally, though  most  implicitly,  obey  the  commands 
of  an  absolute  ruler  who  takes  taxes  from  them  but 
never  legislates.  In  the  other,  and  the  one  with 
which  we  are  most  familiar,  the  Sovereign  is  ever 
more  actively  legislating  on  principles  of  his  own, 
while  local  custom  and  idea  are  ever  hastening  to 
decay.  It  seems  to  me  that  in  the  passage  from  one 
of  these  political  systems  to  another,  laws  have  dis- 
tinctly altered  their  character.  The  Force,  for  ex- 
ample, which  is  at  the  back  of  law,  can  only  be 
called  the  same  by  a  mere  straining  of  language. 
Customary  law — a  subject  on  which  all  of  Austin's 
remarks  seem  to  me  comparatively  unfruitful — is  not 
obeyed,  as  enacted  law  is  obeyed.  When  it  obtains 
over  small  areas  and  in  small  natural  groups,  the 
penal  sanctions  on  which  it  depends  are  partly  opin- 
ion, partly  superstition,  but  to  a  far  greater  extent 
an  instinct  almost  as  blind  and  unconscious  as  that 
which  produces  some  of  the  movements  of  our  bodies. 
The  actual  constraint  which  is  required  to  secure 
conformity  with  usage  is  inconceivably  small.  Wheri» 
however,  the  rules  which  have  to  be  obeyed  once 
emanate  from  an  authority  external  to  the  small 


LKCT.  xm.  LAW   AND   ORDER.  893 

natural  group  and  forming  no  part  of  it,  they  wear  a 
character  wholly  unlike  that  of  a  customary  rule.  They 
lose  the  assistance  of  superstition,  probably  that  of 
opinion,  certainly  that  of  spontaneous  impulse.  The 
force  at  the  back  of  law  comes  therefore  to  be  purely 
coercive  force  to  a  degree  quite  unknown  in  societies 
of  the  more  primitive  type.  Moreover,  in  many 
communities,  this  force  has  to  act  at  a  very  great 
distance  from  the  bulk  of  the  persons  exposed  to  it, 
and  thus  the  Sovereign  who  wields  it  has  to  deal  with 
great  classes  of  acts  and  with  great  classes  of  per- 
sons, rather  than  with  isolated  acts  and  with  indivi- 
duals. Among  the  consequences  of  this  necessity  are 
many  of  the  characteristics  sometimes  supposed  to  be 
inseparable  from  laws,  their  indifferency,  their  inex- 
orableness,  and  their  generality. 

And  as  the  conception  of  Force  associated  with 
laws  has  altered,  so  also,  I  think,  has  the  conception 
of  Order.  In  the  elementary  social  groups  formed 
by  men  of  the  Aryan  race,  nothing  can  be  more  mo- 
notonous than  the  routine  of  village  custom.  Never- 
theless, in  the  interior  of  the  households  which 
together  make  up  the  village-community,  the  des- 
potism of  usage  is  replaced  by  the  despotism  of 
paternal  authority.  Outside  each  threshold  is  im- 
memorial custom  blindly  obeyed;  inside  is  the  Patria 
Potestas  exercised  by  a  half-civilised  man  over  wife, 
child,  and  slave.  So  far  then  as  laws  are  commands, 


394          TRANSMUTATION   OF   FORCE   AND    ORDER.      IECT.  XITI. 

they  would  be  associated  in  this  stage  of  society  less 
with  invariable  order  than  with  inscrutable  caprice; 
and  it  is  easier  to  suppose  the  men  of  those  times 
looking  to  the  succession  of  natural  phenomena,  day 
and  night,  summer  and  winter,  for  types  of  regularity, 
than  to  the  words  and  actions  of  those  above  them 
who  possessed  coercive  power  over  them. 

The  Force  then  which  is  at  the  back  of  laws 
was  not  always  the  same.  The  Order  which  goes 
with  them  was  not  always  the  same.  They  have 
only  gradually  attracted  to  themselves  the  attributes 
which  seem  essential  to  them  not  only  in  the  popular 
view  but  to  the  penetrating  eye  of  the  Analytical 
Jurist.  Their  generality  and  their  dependence  on  the 
coercive  force  of  a  Sovereign  are  the  result  of  the 
great  territorial  area  of  modern  States,  of  the  com- 
minution of  the  sub-groups  which  compose  them,  and 
above  all  of  the  example  and  influence  of  the  Roman 
Commonwealth  under  Assembly,  Senate,  and  Prince, 
which  from  very  early  times  was  distinguished 
from  all  other  dominations  and  powers  in  that 
it  brake  up  more  thoroughly  that  which  it  de- 
voured. 

It  has  sometimes  been  said  of  great  systems  of 
thought  that  nothing  but  an  accident  prevented  their 
coming  into  existence  centuries  before  their  actual 
birth.  No  such  assertion  can  be  made  of  the  system 
of  the  Analytical  Jurists,  which  could  not  have  been 


J.KCT.  xm.  HOBBES    AND    BEXTHAM.  395 

conceived  in  the  brain  of  its  authors  till  the  time  was 
fully  ripe  for  it.  Hobbes's  great  doctrine  is  plainly 
the  result  of  a  generalisation  which  he  had  oppor- 
tunities unrivalled  in  that  day  for  effecting,  since 
during  the  virility  of  his  intellect  he  was  as  much  on 
the  Continent  as  in  England,  first  as  a  travelling  tutor 
and  afterwards  as  an  exile  flying  from  civil  disturb- 
ances. Independently  of  English  affairs,  which  he 
certainly  viewed  as  a  strong  partisan,  the  phenomena 
which  he  had  to  observe  were  governments  rapidly 
centralising  themselves,  local  privileges  and  juris- 
dictions in  extreme  decay,  the  old  historical  bodies, 
such  as  the  French  Parliaments,  tending  for  the  tune 

'  O 

to  become  furnaces  of  anarchy,  the  only  hope  of 
order  discoverable  in  kingly  power.  These  were 
among  the  palpable  fruits  of  the  wars  which  ended 
in  the  Peace  of  Westphalia.  The  old  multiform 
local  activity  of  feudal  or  quasi-feudal  society  was 
everywhere  enfeebled  or  destroyed ;  if  it  had  con- 
tinued, the  system  of  this  great  thinker  would  almost 
certainly  have  never  seen  the  light ;  we  have  heard 
of  a  village  Hampden,  but  a  village  Hobbes  is  incon- 
ceivable. By  the  time  Bentham  wrote,  and  while  he 
was  writing,  the  conditions  which  suggest  the  Analy- 
tical System  of  Jurisprudence  presented  themselves 
still  more  distinctly.  A  Sovereign  who  was  a  de- 
mocracy commenced,  and  a  Sovereign  who  was  a 
despot  completed,  the  Codification  of  the  laws  of 


396  ANALYSIS   AND   HISTORY.  IECT.  xm. 

France.  There  had  never  before  in  the  modern  world 
been  so  striking  an  exemplification  of  the  proposition 
that,  what  the  Sovereign  permits,  he  commands,  be- 
cause he  could  at  any  time  substitute  an  express  com- 
mand for  his  tacit  permission,  nor  so  impressive  a 
lesson  in  the  far-reaching  and  on  the  whole  most 
beneficial  results  which  might  be  expected  from  the 
increased  activity  of  Sovereigns  in  legislation  proper. 

No  geniuses  of  an  equally  high  order  so  completely 
divorced  themselves  from  history  as  Hobbes  and 
Bentham,  or  appear,  to  me  at  all  events,  so  completely 
under  the  impression  that  the  world  had  always  been 
more  or  less  as  they  saw  it.  Bentham  could  never 
get  rid  of  the  idea  that  imperfect  or  perverse  appli- 
cations of  his  principles  had  produced  many  things 
with  which  they  had  nothing  whatever  to  do,  and  I 
know  no  more  striking  instance  of  an  historical  mis- 
conception (though  at  the  time  a  very  natural  one) 
than  Hobbes's  comparison  of  privileged  corporations 
and  organised  local  groups  to  the  parasites  which  the 
physiology  then  becoming  fashionable  had  shown  tc 
live  in  the  internal  membranes  of  the  human  body. 
We  now  know  that,  if  we  are  forced  to  use  a  physiolo- 
gical illustration,  these  groups  must  rather  be  com- 
pared to  the  primary  cells  out  of  which  the  whole 
human  body  has  been  built  up. 

But,  if  the  Analytical  Jurists  failed  to  see  a  great 
deal  which  can  only  be  explained  by  the  help  of  his- 


LECT.  Xtn.      INFLUENCE    OF    ANALYTICAL    SYSTEM.  307 

tory,  they  saw  a  great  deal  which  even  in  our  day  is 
imperfectly  seen  by  those  who,  so  to  speak,  let  them- 
selves drift  with  history.  Sovereignty  and  Law, 
regarded  as  facts,  had  only  gradually  assumed  a 
shape  in  which  they  answered  to  the  conception  of 
them  formed  by  Hobbes,  Bentham,  and  Austin,  but 
the  correspondence  really  did  exist  by  their  time 
and  was  tending  constantly  to  become  more  perfect. 
They  were  thus  able  to  frame  a  juridical  termino- 
logy which  had  for  one  virtue  that  it  was  rigidly  con- 
sistent with  itself,  and  for  another  that,  if  it  did  not 
completely  express  facts,  the  qualifications  of  its  accu- 
racy were  never  serious  enough  to  deprive  it  of  value 
and  tended  moreover  to  become  less  and  less  important 
as  time  went  on.  No  conception  of  law  and  society 
has  ever  removed  such  a  mass  of  undoubted  delusion. 
The  force  at  the  disposal  of  Sovereigns  did  in  fact  act 
largely  through  laws  as  understood  by  these  Jurists, 
but  it  acted  confusedly,  hesitatingly,  with  many  mis- 
takes and  vast  omissions.  They  for  the  first  time 
saw  all  that  it  was  capable  of  effecting,  if  it  was  ap- 
plied boldly  and  consistently.  All  that  has  followed 
is  a  testimony  to  their  sagacity.  I  do  not  know  a 
single  law-reform  effected  since  Bentham's  day  which 
cannot  be  traced  to  his  influence;  but  a  still  more 
startling  proof  of  the  clearing  of  the  brain  produced 
by  this  system,  even  in  an  earlier  stage,  may  be  found 
in  Hobbes.  In  his  '  Dialogue  of  the  Common  laws,'  he 


b98  LEGISLATION   IN   MODERN  STATES.         U5CT.  xni, 

argues  for  a  fusion  of  law  and  equity,  a  registration 
of  titles  to  land,  and  a  systematic  penal  code — three 
measures  which  we  are  on  the  eve  of  seems;  carried 

o 

out  at  this  very  moment. 

The  capital  fact  in  the  mechanism  of  modern 
States  is  the  energy  of  legislatures.  Until  the  fact 
existed,  I  do  not,  as  I  have  said,  believe  that  the 
system  of  Hobbes,  Bentham  and  Austin  could  have 
been  conceived  ;  wherever  it  exhibits  itself  imper- 
fectly, I  think  that  the  system  is  never  properly 
appreciated.  The  comparative  neglect  with  which 
German  writers  have  treated  it  seems  to  me  to  be 
explained  by  the  comparative  recency  of  legislative 
activity  in  Germany.  It  is  however  impossible  to 
observe  on  the  connection  between  legislation  and 
the  analytical  theory  of  law  without  having  the 
mind  carried  to  the  famous  addition  which  Bentham 
and  Austin  engrafted  on  the  speculations  of  Hobbes. 
This  addition  consisted  in  coupling  them  with  the 
doctrine  or  theory  of  utility — of  the  greatest  happi- 
ness of  the  greatest  number  considered  as  the  basis  of 
law  and  morals.  What,  then,  is  the  connection,  essen- 
tial or  historical,  between  the  utilitarian  theory  and 
the  analytical  theory  of  law?  I  certainly  do  not 
affect  to  be  able,  especially  at  the  close  of  a  lecture,  to 
exhaust  a  subject  of  such  extent  and  difficulty,  but 
I  have  a  few  words  to  say  of  it.  To  myself  the 
most  interesting  thing  about  the  theory  of  Utility  is 


tECT.  Xttl.  THE   UTILITAEIAN   PHILOSOPHY.  309 

that  it  presupposes  the  theory  of  Equality.  The 
greatest  number  is  the  greatest  number  of  men 
taken  as  units ;  '  one  shall  only  count  for  one,'  said 
Bentham  emphatically  and  over  and  over  again.  In 
fact,  the  most  conclusive  objection  to  the  doctrine 
would  consist  in  denying  this  equality ;  and  I  have 
myself  heard  an  Indian  Brahmin  dispute  it  on  the 
ground  that,  according  to  the  clear  teaching  of  his 
religion,  a  Brahmin  was  entitled  to  twenty  times  as 
much  happiness  as  anybody  else.  Now  how  did 
this  fundamental  assumption  of  equality,  which  (I 
may  observe)  broadly  distinguishes  Bentham's  theo- 
ries from  some  systems  with  which  it  is  supposed 
to  share  the  reproach  of  having  pure  selfishness  for 
its  base — how  did  it  suggest  itself  to  Bentham's 
mind  ?  He  saw  plainly — nobody  more  clearly — 
that  men  are  not  as  a  fact  equal ;  the  proposition 
that  men  are  by  nature  equal  he  expressly  denounced 
as  an  anarchical  sophism.  "Whence  then  came  the 
equality  which  is  a  postulate  of  his  famous  doctrine 
about  the  greatest  happiness  of  the  greatest  number? 
I  venture  to  think  that  this  doctrine  is  nothing  more 
than  a  working  rule  of  legislation,  and  that  in  this 
form  it  was  originally  conceived  by  Bentham.  As- 
sume a  numerous  and  tolerably  homogeneous  com- 
munity— assume  a  Sovereign  whose  commands  take 
a  legislative  shape — assume  great  energy,  actual  or 
potential,  in  this  legislature — the  only  possible,  the 


400  BEXTHAM   AS   A   MORALIST.  LECT. 

only  conceivable,  principle  which  can  guide  legisla- 
tion on  a  great  scale  is  the  greatest  happiness  of  the 
greatest  number.  It  is  in  fact  a  condition  of  legis- 
lation which,  like  certain  characteristics  of  laws,  has 
grown  out  of  the  distance  from  which  sovereign 
power  acts  upon  subjects  in  modern  political  so- 
cieties, and  of  the  necessity  under  which  it  is  thereby 
placed  of  neglecting  differences,  even  real  differences, 
between  the  units  of  which  they  are  composed.  Ben- 
tham  was  in  truth  neither  a  jurist  nor  a  moralist  in 
the  proper  sense  of  the  word.  He  theorises  not  on 
law  but  on  legislation  ;  when  carefully  examined,  he 
may  be  seen  to  be  a  legislator  even  in  morals.  Xo 
doubt  his  language  seems  sometimes  to  imply  that 
he  is  explaining  moral  phenomena ;  in  reality  he 
wishes  to  alter  or  re-arrange  them  according  to  a 
working  rule  gathered  from  his  reflections  on  legis- 
lation. This  transfer  of  his  working  rule  from 
legislation  to  morality  seems  to  me  the  true  ground 
of  the  criticisms  to  which  Bentham  is  justly  open 
as  an  analyst  of  moral  facts. 


INDEX. 


ACCEPTANCE 

i  CCEFfANCE  of  stock,  effect  of,  1 63 ; 

IJL  not  always  voluntary,  ib. ;  by  King 
of  Erin  from  the  Emperor,  165 ;  from 
the  successor  of  St.  Patrick,  166 

A gn at ic  kindred  in  Roman  law,  106, 112 

Aicill,  Book  of,  12  ;  probably  oldest  of 
the  Irish  Law  Tracts,  24  ;  relates  the 
story  of  Cormac,  37 ;  advanced  legal 
views  of,  45  :  on  dog-fights  and  bees, 
46 ;  on  rule  of  legitimacy,  53,  59 ;  on 
fuidhir  tenancy,  1 74  ;  on  distribution 
of  the  Irish  family,  208;  on  the 
Geilfine  group,  219 

Aires,  the  nobles,  136 ;  seven  grades  of, 
tb. 

Alfred,  feud  law  of,  303 

Alienation  of  tribal  lands,  how  limited, 
108;  in  Hindoo  law,  109  ;  in  Russia, 
ib. ;  decision  of  Madras  High  Court 
on.  110 

Analytical  Jurists,  the,  343  ;  Bentham 
on  legislation,  Austin  on  jurispru- 
dence, ib. ;  Hobbes  on  government, 
354  ;  assertions  of,  in  regard  to  sove- 
reig-ity,  367  ;  on  force  and  order,  372  ; 
limits  of  analytical  system,  385 ;  in- 
fluence of  the  analytical  system,  397 

Anglo-Norman  settlement  in  Ireland, 
effects  of,  54 

Argyll,  Duke  of,  on  the  '  Reign  of  Law,' 
373 

Aristocracy,  modern,  the  rise  of,  130; 
original  in  some  communities,  133  ;  a 
sovereign  government,  350 

Aryan  customs.  b«nd  between  East  and 
West,  20.  See  Institutions. 

Athens,  formed  from  a  coalescence  of 
village  communities,  84 ;  its  empire 
not  legislative,  385 


BENEFICES 

Augustus,  Marriage  Law  of,  336 
Austin,  John,  unknown  abroad,  343 ; 
his  '  Province  of  Jurisprudence  de- 
termined,' 345 ;  nature  of  his  proposi- 
tions, 346;  his  definition  of  sove- 
reignty, 347,  348  ;  the  individual  or 
collegiate  sovereign,  349 ;  various 
forms  of  monarchy,  350 ;  the  govern- 
ment of  Great  Britain,  an  aristocracy, 
il>. ;  the  sovereign  determinate,  351  ; 
obeyed  by  the  large  majority,  352 ; 
must  receive  habitual  obedience,  353 ; 
difficulty  as  to  obedience  to  the  See  of 
Rome,  ib.  ;  uncontrolled  by  any  human 
superior,  ib. ;  compared  with  Hobbes, 
354,  356 ;  forcv  of  society,  358 ; 
sovereignty  an  abstraction,  359 ;  eli- 
mination of  historical  influences,  360  ; 
scientific  method,  361  ;  law  depend- 
ent upon  sovereignty,  362 ;  right, 
duty,  and  punishment,  363 ;  cus- 
tomary law,  ib. ;  sovereigns  command 
what  they  permit,  364 ;  the  Greek 
tyrants,  365 ;  theory  of  morality, 
366,  367 ;  his  utilitarianism,  368  ;  on 
law  of  God,  369 ;  the  most  serious 
blemish  in  his  work,  ib.  •  his  analysis 
of  extant  governments,  376 ;  on  anar- 
chy, 377  ;  on  state  of  nature,  378  ; 
no  sovereign  in  very  small  group, 
379;  quotes  Montesquieu,  ib.;  on 
particular  commands,  382;  on  cus- 
tomary law,  392 


3ENEFICES,  source  of  feudalism,  154 

J      Bentham,   Jeremy,   on    evidence, 

49 ;  deals  with  legislation  rather  than 

jurisprudence,    343 ;     his    influence 


D  D 


402 


INDEX. 


BIRTH 

on  law  reforms,  397  ;  his  working 
rule  true  in  legislation  rather  than  in 
morals,  400 

Birth  and  wealth,  opposition  between,  a 
modern  idea,  134 

Birthright,  the  reward  of  the  distributer 
of  an  estate,  197  ;  to  be  distinguished 
from  primogeniture,  ib. ;  sometimes 
enjoyed  by  the  younger  sou,  ib.  • 
thus  connected  with  borough  English, 
ib. 

Bishops,  Ancient  Irish,  multitude  and 
servile  position  of,  235 ;  dependent 
on  religious  houses,  236;  religious 
kinship,  237 

Blackstone  on  borough  English,  222 ; 
on  hazards  of  taking  distress,  273; 
his  method  opposed  by  Bentham  and 
Austin,  347;  his  definition  of  law, 
371 

Bo-aire,  or  cow-nobleman,  135;  an  en- 
riched peasant,  165 

Borough  English,  222 ;  similar  custom 
in  law  of  Wales,  223 

Bracton  on  primogeniture,  125;  on  dis- 
traint, 270,  277 

Brahmins,  the  only  true  caste,  245 ; 
their  dislike  of  woman's  property, 
325 ;  authors  of  '  Suttee,'  335 

Brehon  Laws.     See  Irish  Law  Tracts 

Brehons,  the,  a  class  of  professional  law- 
yers, 24 ;  hereditary,  ib.  ;  compared 
with  the  Druids,  28,  32 ;  universal 
referees,  ib. ;  their  schools  numerous, 
ib. ;  their  cosmogony,  34 ;  the  king 
and  the  brehon,  36 ;  judges  but  not 
priests,  38  ;  acted  by  arbitration,  ib. ; 
on  voluntary  submission  of  litigants, 
43  ;  declared  law  through  hypothetical 
cases,  44 ;  influence  of  their  self-as- 
sertion, 51 ;  with  their  pupils  consti- 
tuted a  true  family,  243  ;  incorrectly 
described  as  a  caste,  244 ;  became 
hereditary,  245 ;  accompanied  dis- 
trainer  in  action  of  distress,  286 ; 
equity  and  reasonableness  displayed 
in  the  law  of  distress,  291 

Bride  price,  widely  diffused  Aryan  cus- 
tom, 324 

Bryce,  Mr.,  on  influence  of  the  Koman 
Empire,  165 

Burton,  Mr.,  on  leg-'timacy  in  Scotland, 
60 ;  on  succession,  204 


CHIEF 

,  his  description  of  the  Celts 

\J  in  Gaul,  5  ;  on  the  writing  of  the 
Gauls,  13 ;  his  account  of  the 
Druids,  28  ;  of  the  three  Celtic 
orders,  29 ;  failed  to  observe  tho 
divisions  of  septs  and  families,  30; 
found  the  Colt  s  polygamous,  59 ; 
on  noble  class  among  Celts,  132 ; 
on  the  debtors  of  Celtic  chiefs,  167 

Canon  Law,  origin  of,  63  ;  on  consan- 
guinity, 213 

Capital,  formerly  more  important  than 
land.  168  ;  in  the  hands  of  the  nobles, 
169  ;  source  of  power  over  the  poorer 
classes,  ib. 

'  Capitis  Deminrtio,'  of  the  Roman  law, 
218 

Caste,  origin  of,  244;  tendency  of  trades 
to  become  hereditary,  245  ;  Brahmin* 
the  only  true  hereditary  caste,  ib. ; 
resemblance  to  literary  fosterage  in 
the  Brehon  Tracts,  246 

Cattle,  wealth  in,  137  ;  reward  of  ser- 
vice to  the  chief,  142 ;  object  of  a 
Kafir  chiefs  retainers,  143;  cattle 
stealing,  144  ;  in  Ireland  a  '  survival,' 
ib. ',  importance  of  in  early  ages,  147  ; 
original  '  capital,'  ib. ;  origin  of  pe- 
cunia,  148  ;  their  importance  in  Ro- 
man law  and  among  the  Hindoos,  ib. ; 
most  valuable  when  men  settled  to 
cultivate  land,  ib. ;  measure  of  value, 
149  ;  in  Brehon  laws,  ib. ;  value  of,  for 
labour  in  tillage,  ib. ;  cause  of  their 
protection  in  Rome  and  India,  150; 
Irish  system  of  giving  stock,  151  ; 
source  of  vassalage.  152;  resembling 
commendation,  1 58  ;  source  of  power 
to  the  nobles,  168  ;  regulated  by  the 
Brehon  laws,  169;  distraint  of,  262  ; 
impounding,  263 

Ceile,  or  Kyle,  a  vassal  to  the  chief, 
158 

Celtic  societies,  4 ;  three  orders  of,  29  ; 
polyeamy  among,  59 ;  land  system, 
96  ;  "society  described  by  Sir  W.  Scott, 
141 

Chief,  Ancient  Aryan,  or  King,  appears 
as  priest,  judge,  and  captain,  35 

Chief,  the  e'ective,  succeeds  the  patri- 
archal power,  117;  sometimes  with 
Council  of  Kinsmen,  ib.  ;  his  status, 
119  seq. ;  the  source  of  primogeni- 
ture, 120;  Irish  tribal  chief,  127; 
the  Norman  nobles  as  Irish  chiefs. 


INDEX. 


403 


CHRISTIANITY 


DUBHIHACH 


128;  relations  of  chief  and  tribe, 
128;  growth  of  his  power  over  the 
land,  130;  hi*  position  iii  the  Bre- 
hon  laws,  1S2  ;  necessarily  rich, 
133  ;  not  in  land,  but  in  cattle,  134 ; 
power  increased  by  giving  stock,  157  ; 
right  of  refection,  161  ;  employed  the 
fuidhirs  on  his  lands,  173  ;  derived 
great  increase  of  power  by  so  doing, 
177 ;  private  estates  of,  193 ;  in- 
stances of  estates  divided  by,  194 ; 
possessed  power  of  distributing  in- 
heritances, 196  ;  his  family  venerated 
as  representing  the  purest  blood,  200  ; 
ellest  relative  preferred  to  eldest  son, 
201 

Christianity  introduced  writing  to  the 
ruder  nations,  13  ;  affected  the  Bre- 
hon  laws,  55,  58  ;  restrained  the 
liberty  of  divorce,  60 

Church,  Ancient  Irish,  235 

Church,  the  Christian,  its  influence  on 
contracts,  56  ;  on  wills  and  private 
property,  104  ;  in  favour  of  womcn, 
337  ;  promoted  dotation,  338 

Clans,  Scottish,  5 

Code  Napoleon,  on  personal  revenge,  303 

Coin  and  Livery,  oppressive  nature  of 
in  Ireland,  128,  161 

Collective  ownership  of  the  soil,  primi- 
tive and  universal,  1 

Comitatus,  the  companions  of  the  King, 
138;  the  Royal  Household,  139.  See 
Companions 

Commendation,  eflei-ts  of,  130,  154;  ac- 
counted for,  155  ;  illustrated  in  Bre- 
hon  Tracts.  156;  incurred  by  accept- 
ing stock,  165 

Companions  of  the  King,  138  ;  of  Erin, 
139;  of  Iceland,  140  ;  of  Highland 
chiefs,  141;  of  Teutonic  kings,  ib. ; 
everywhere  rewarded  by  gifts  of  land, 
ib ;  and  of  cattle,  142  ;  their  status 
at  first  servile,  145;  when  free,  not 
the  king's  near  kindred,  ib. 

Compurgation,  an  ancient  test  of  truth, 
48 

Consanguinity.      See  Kinship 

Coatracts,  conception  of,  due  to  the 
Church,  56 ;  influence  of  the  Church 
upon,  104 

Contributory  negligence. principles  of  in 
ancient  Irish  laws,  45 

Coote,  Mr.,  on  origin  of  English  insti- 
tutions 295 


Corus  Bescna,  one  of  the  Irish  Law 
Tracts,  56;  deals  chiefly  with  eon- 
tracts,  ib.  and  limitations  of  contract, 
68;  on  tribal  property,  103;  biaa 
of  autlior  towards  the  Church,  104  ; 
on  alien ition  of  tribal  land,  111,  191 

Coshering,  oppressive  nature  of  in  Ire- 
land, 123,  161 

Co-tenancy,  Irish  law  of,  112 

Cultivating  groups,  113 

Cumhal,  a  measure  of  v'alue,  149;  ori- 
ginally a  female  slave,  ib. 

Custumals,  French  manuals  of  feudal 
rules,  6 


TVAERSTOCK  Tenure,  Law  of,  152, 

±J  1 58 ;  reduced  the  vassals  to  servi- 
tude, 159;  often  became  permanent, 
162 

Dasent,  Mr.,  his  history  of  Burnt  Njal, 
140  ;  on  Norse  customs,  288 

Davis,  Sir  J.,  on  Irish  law,  18 ;  on 
Irish  Land,  98  ;  on  Irish  oppression, 
127  ;  on  right  of  refection,  161  ;  de- 
nounces the  Eric-Fine,  170  ;  on 
Tiinistry,  205  ;  on  Gavelkind,  18o, 
206  ;  on  degeneracy  of  the  Normans 
settled  in  Ireland,  247 

'  Dharna,'  the  Hindoo  custom  of  sitting, 
40,  297,  298 ;  Lord  Teignmouth's  ac- 
count of,  299  ;  sanctions  of,  300  ; 
modern  prohibition  of,  301  ;  survives 
in  native  Indian  States,  304 

Distress,  Law  of,  8  ,  forms  a  large  part 
of  Brehon  law,  39.  See  Legal  Reme- 
dies 

Dithim,  delay  in  pound,  281 

Ditmarsh,  Aristocracies  in,  230 

Divorce,  the  liberty  of,  facilitated  the 
introduction  of  monogamy,  60 ;  re- 
strained by  Christian  morality,  ib. 

Doniol,  on  English  copyholds,  1  '.'o 

Dotation,  compulsory  in  Roman  Law, 
336  ;  promoted  by  the  Christian 
Church,  338 ;  its  power  in  France, 
339 

Druids,  mentioned  in  the  Irish  Law 
Tracts,  28  ;  described  by  Caesar  and 
Strabo,  ib. ;  their  functions,  31  ;  re- 
sembled the  Brehons,  32 ;  believed 
in  the  immortality  of  the  soul,  40 

Dubhthach,  compiler  of  the  Sonchu* 
Mor,  22 ;  blessed  by  St.  Patrick,  ib. 
resembles  the  chief  Druid  of  Caesar,  33 


D  D  2 


404 


INDEX 


DUGMOKB 

Dugmore,  Rev.  H.,  on  the  retainers  of 
Kafir  chiefs,  143;  on  Kafir  law 
suits,  302 

Dupin,  M.,  on  French  house-communi- 
ties, 80 


T7DWARD  I.,  his  decision  in  favour  of 

Jj     Baliol,  204 

Elective  headship,  succeeds  to  the  patri- 
archal power,  117 

Empires,  Ancient  (except  the  Roman) 
taxlevying  rather  than  lawmaking, 
384  ;  the  Athenian  Empire,  385 

English  courts  of  justice  active  agents 
in  -working  out  changes  of  ideas,  229 

—  emigrants  in  America  adopted  vil- 
lage communities,  94 

—  law,  contrasted  with  Irish,  43  ;  case 
law,    importance    of,    47 ;    careful- 
ness about  facts,  48 

—  settlers  in  India,  reputed  harsh  land- 
lords, 128 

—  township,    early  representation    of, 
221 

Equality  of  men,  foundation  of  the 
utilitarian  philosophy,  398  ;  the  con- 
trary opinion  of  a  Brahmin,  399 

Eric-fine,  a  payment  substituted  for 
homicide,  23 ;  its  usefulness,  170 

FACTS,  regard  to,  special  character- 
istic of  English  justice,  48;  of 
human  nature  intricately  involved,  49 

Fair  of  Carman,  27 

Family,  the  smallest  groxip,  66 ;  ex- 
pands into  the  tribe,  69 ;  recruited 
by  strangers,  ib. ;  stages  of  transition, 
78 ;  Hindoo  joint  family,  ib. ;  the 
common  home  and  the  common  table, 
80 ;  the  '  fine'  in  Ireland,  90 ;  the 
Ifgal  unit  of  the  Brehon  Tracts,  91 ; 
gave  names  to  places,  ib. ;  ancient 
divisions  of,  185;  abnormal  divisions 
of  the  Irish  family,  208  scq.  ;  not 
according  to  degrees  of  blood.  211  ; 
the  Roman  family  compared  with 
the  Irish,  218  ;  older  members  some- 
times pensioners  of,  219  ;  custom  of 
borough  English,  224 ;  enlargement 
of,  by  fictitious  kinship  in  Rome, 
230 ;  in  Ireland,  231 ;  the  one  con- 
dition of  progress  to  civilisation, 
30?  assumed  as  the  starting  point 


FREEMAN 

of  both  Roman  and  Hindoo  law,  ib. ; 
the  patriarchal  family,  310;  its 
power,  ib. ;  its  decay,  311 ;  its  treat- 
ment of  women,  ib. 

Fasting,  upon  a  debtor,  39 ;  similar 
Hindoo  custom  of  '  Dharna,'  40 

Father,  power  of  the,  the  first  and 
greatest  landmark  in  legal  history, 
216 

Feodum,  Feud  or  Fief,  etymology  of, 
171 ;  meant  property  or  cattle,  172 

Feud,  Alfred's  Law  of,  303 

Feudal  dues,  burden  of  in  France,  124 

—  law,  errors  of  writers   on,  119;  of 
succession,  its  growth,  205 

—  monarchy,   exact    counterpart  of  a 
feudal  manor,  77 

—  system,  contrasted  with  the  Roman 
Empire,   153 ;  sources   of,   154 ;    its 
germs  in  ancient  social  forms,  166 

Feudalization  of  Europe,  85 ;  has 
changed  the  'mark'  into  the  manor, 
ib. ;  makes  the  land  the  exclusive 
bond  of  union,  ib. ;  effect  of  '  com- 
mendn.tion,'  86 ;  dissolution  of  feudal 
groups,  ib. ;  growth  of  Feudal  law  of 
Succession,  205 

'  Fine,"  Irish  term  for  family  or  sept, 
90 ;  in  the  Brehon  Tracts,  the  sept, 
105  ;  also  of  all  forms  of  the  family, 
231 

Fine,  pecuniary,  a  composition  for 
homicide,  23 ;  supplanted  retalia- 
tion, ib. 

Five,  importance  of  the  number,  221 
Flaiths,  minor  Irish  chiefs,  93 
Fosterage,   widely  diffused  custom  in 
Aryan  communities,  241 ;    specially 
strong  in  Ireland,  242  ;  true  explana- 
tion of,  ib. 

—  literary,  treated  of  in  Brehon  Tracts, 
242  ;  similar  custom  in  India,  243  ; 
by  Hindoo  law  carried  succession  to 
property,  ib. 

France,  subdivision  of  land  in,  121  ; 
signorial  monopolies  in,  123 ;  power 
of  the  custom  of  dotation  in,  339 

Freeman,  Mr.,  on  territorial  style  of 
English  kings,  73  ;  of  French  kings, 
74 ;  on  the  G  erman  village  com- 
munity, 77  ;  on  English  village  com- 
munities, 82 ;  on  comparative  politics, 
119;  on  classes,  131;  on  servile 
noliility,  145;  on  Mr.  Coote's  work 
on  laws,  296 


IXDEX. 


405 


FUIDHIRS 

Fuidhirs,  stranger  tenants,  93  ;  ancient 
servile  class,  172;  strangers  from 
other  tribes,  173 ;  solely  dependent 
upon  the  chief,  1 75  ;  paid  rack  rent, 
t6. ;  similar  classes  in  Orissa,  176 


GAIUS,  discovery  of  his  treatise, 
250  ;  his  account  of  'Legis  Ac- 
tiones,'  251 ;  of  the  claimant's  wand, 
254 ;  on  danger  of  miscarriage  of 
law,  255 ;  on  the  '  Pignoris  capio,' 
258  ;  on  excessive  subtlety  of  lawyers, 
273 

Gavelkind,  in  Ireland,  described,  99, 
186 ;  in  Eussia,  189  ;  difficulties 
respecting,  190;  reintroduced  to  in- 
jure the  Irish,  -06 

Geilfine,  principal  division  of  Irish 
family,  209  seg. ;  said  to  mean 
'hand-family,'  216 

Gillingbam,  origin  of  name,  83 

Glanville,  on  division  of  land,  125;  on 
succession,  203 

Gossipred,  or  spiritual  relationship, 
210 ;  closely  assimilated  to  blood 
relationship,  241 

Grote,  Mr.,  on  the  natural  priority  of 
verse,  14 

Guilds,  tribal  origin  of,  232 ;  of  Celtic 
etymology,  ib. ;  thought  of  as  a 
family,  ib. ;  London  companies,  233 


HAND,  signifies  power,  in  Aryan 
languages,  216;  in  Roman  law, 
217 ;  paternal  power,  ib. 

Hatherley,  Lord  Chancellor,  important 
judgment  of,  4 

Heriot  of  copyhold,  a  survival  of  stock- 
giving,  162 

Hindoo  Family.  See  Joint  Undivided 
Family 

—  Law,  its  prodigious  antiquity,  309  ; 
changed  and  depraved  by  the  Brah- 
mins, 326 ;  development  of.  327 ; 
effects  of  Brahminical  religion  on, 
331 ;  regards  property  as  for  the 
benefit  of  the  dead,  332 

Hobbes,  on  government,  354  ;  his  poli- 
tical opinions,  355  ;  r.n  the  origin  of 
society,  356 ;  on  the  common  law, 
363 ;  a  strong  partisan,  395 ;  his 
opportunities  of  observing  foreign 
States,  ib. ;  his  '  Dialogue  of  the 


INSTITUTIONS 

Common  Laws,'  397  ;  its  remarkable 

foresight,  398 
Homer,     his     description    of    Achaean 

chiefs,  35  ;  takes  cattle  an  a  measure 

of  value,  149 

Homicide,  composition  for,  23 
Honour  price,   of  chieftains,    136;  of 

tenants,  160 
House   community,   in    Dalmatia    and 

Croatia,  7 ;  examined,  79 ;  in  Scla- 

vonia  and  in  France,  80 
Humanity,   or    moral    brotherhood,   a 

modern  conception,  65 
Hunter,  Mr.,    on    agricultural  classes 

in  Orissa,  176 
Hypothek,  the  law  of,  in  Scotland,  277 


TDEAS,  slow  production  of  new,  225 ; 

JL  especially  in  the  East,  226 ;  suddenly 
increased  by  a  great  genius,  227  ; 
then  stagnant  for  a  century,  228  ;  in 
fashion,  ib. ;  in  kinship,  ib. ;  by  de- 
grees transformed,  229 

Indebtedness  of  ancient  democracies, 
167 

India,  litigation  in,  289 

Indian  examples  of  sovereignty,  379 ; 
the  Punjaub,  380  ;  Kunjeet  Singh, 
381,  382 

Indian  memorial  verses,  71 

Indian  Penal  Code  on  '  Dharna,'  301 

Individual,  the,  gradually  disengaged 
from  the  group,  329 

Institutions,  new  materials  for  the  early 
history  of,  1  ;  property  in  land,  ib.  • 
village  communities,  2  ;  joint  un- 
divided family  in  India,  7 ;  fine  sub- 
stituted for  homicide,  23 ;  law 
schools  of  the  Brehons,  33  ;  tanistry, 
ib. ;  law  of  distress,  39 ;  ordeal  and 
compurgation,  48  ;  legitimacy,  rule 
of,  63 ;  wills,  56 ;  contracts,  ib. ; 
mnrriage,  68 ;  divorce,  59 ;  polygamy, 
ib. ;  monogamy,  60  ;  slavery,  62 ; 
kinship,  or  consanguinity,  64;  land 
basis  of  settled  society,  72;  landed 
property,  77;  periodical  redistribu- 
tion of  land,  81 ;  feudalism,  85 ; 
property  in  severalty,  96 ;  private 
property  in  land,  98;  Irish  gavel- 
kind,  100  ;  rules  of  common  tillage, 
110;  cotenancy,  112;  patriarchal 
power,  115  ;  passes  into  elective 
headship,  117 ;  the  chief,  119  ;  primo- 


406 


IXDEX. 


INTERNATIONAL 

geniture,  120;  aristocracy,  130; 
modern  kingship,  ib. ;  wealth  in 
cattle,  134;  commendation,  154; 
'giving  stock,'  157;  rent  in  kind, 
160  ;  right  of  refection,  161 ;  heriot 
of  copyhold,  162;  metayer  tenancy, 
163  ;  Eric-fines,  170  :  fuidhir  tenants, 
172;  rack  rent,  175;  gavelkind, 
186;  birthright,  197;  tanistry,  202; 
law  of  succession,  204 ;  patria 
potestas,  218  ;  law  of  inheritance, 
219  ;  the  number  five,  221 ;  borough 
English,  222;  fictions  of  kinship, 
229  ;  adoption,  230  ;  guilds,  232  ; 
contract,  233 ;  partnership,  234 ; 
agency,  ib.  •  ancient  Irish  Church, 
235  ;  religious  houses,  236  ;  spiritual 
kinship,  237  ;  spiritual  relationship, 
239  ;  fosterage,  211 ;  literary  foster- 
age, 2-42  ;  caste,  244 ;  legal  remedies, 
250  ;  distraint,  261 ;  replevin,  267  ; 
increased  power  of  tribunals,  276  ; 
Irish  law  of  distress,  280  ;  voluntary 
jurisdiction,  286 ;  distress  an  Aryan 
custom,  296  ;  Dharua,  297 ;  Kafir 
law  suit,  302 ;  feud  law  of  Alfred, 
303 ;  settled  property  of  married 
women,  306;  'usurpation,'  316; 
divorce,  317;  the  dotal  estate,  319; 
'Stridhan,'  321;  bride  price,  324; 
suttee,  335 ;  dotation,  336 ;  sove- 
reignty, 342,  seq. ;  the  village  council, 
388 ;  custum  in  the  eastern  world, 
389  ;  legislation  in  the  western  world, 
391 

International  law,  evidence  furnished 
by,  73 

Irish  estates,  surrendered  and  regranted, 
207 

Irish  Law  Tracts,  published  by  the 
Irish  Government,  8 ;  important  in- 
formation respecting  Celtic  communi- 
ties, ib. ;  known  as  the  Brehon  laws, 
9;  compared  with  Roman  law,  10; 
contain  ancient  nucleus  with  succes- 
sive interpretations,  ib. ;  authentic 
monuments  of  ancient  Aryan  institu- 
tions, 11 ;  very  sliphtly  affected  by 
the  Roman  Empire,  ib. ;  resemble  the 
Hindoo  law,  12  ;  their  probable  date, 
ib. ;  the  Senchus  Mor  and  the  Book 
of  Aicill,  ib. ;  partly  in  verse,  14 ; 
form  of,  15;  each  the  property  of  a 
family  or  school  of  law,  16  ;  consist 
of  text  and  commentary,  ib. ;  uncer- 


IRISH 

tain  date  of  existing  manuscripts, 
17  :  their  system,  that  condemned  by 
Anglo-Irish  legislation,  ib.  ;  by 
Spenser  and  Sir  John  Davis,  18  ; 
analogy  with  early  Roman,  Hindoo, 
and  German!  claw,  19;  advanced  legal 
doctrines  of,  20 ;  origin  of  Senchus 
Mor,  ib.  ;  legend  of  St.  Patrick,  21 ; 
the  law  cf  nature  and  the  law  of  the 
letter,  25  ;  legislative  character  of, 
26 ;  treat  of  miscellaneous  subjects, 
33 ;  importance  of  the  law  of  distress, 
39  ;  their  sanctions,  ib. ;  fasting,  ib. ; 
contrasted  with  Brahmin  sanctions, 
41 ;  with  the  responsa  prvdentum 
of  the  Roman  law,  42 ;  with  English 
law,  43 ;  close  approach  to  modern 
views,  45 ;  minute  on  law  of  dog-fights, 
46 ;  and  bees,  ib.  ;  authority  of, 
whence  derived,  50  ;  affected  by 
Christian  morality  and  Roman  law, 
55 ;  on  wills  and  contracts,  56  ;  little 
affected  by  Christianity  on  marriage, 
68  ;  on  divorce,  59  ;  on  chastity,  61  ; 
on  private  ownership  of  land,  89  ; 
on  the  'fine,'  91;  suggest  wide 
separation  of  races,  96 ;  but  resem- 
blances between  Aryan  subraces,  ib. ; 
on  private  property  in  land,  98  ;  on 
the  tribe,  107;  on  co-tenancy,  112; 
on  tribal  ownership  of  land,  129  ;  on 
transition  to  feudalism,  130 ;  on 
position  of  chieftains,  182;  on  their 
wealth,  134;  the  Bo-aire,  135;  how 
ho  becomes  a  nobleman,  136 ;  account 
of  the  companions  of  the  king,  140  ; 
their  condition  servile,  145 ;  import- 
ance of  horned  cattle,  1 47 ;  illustrate 
'commendation,'  156;  on  giving  and 
receiving  stock,  157;  on  right  of  re- 
fection, 161 ;  on  oppressiveness  of 
'giving  stock,'  164;  regulated  the 
proportion  of  stock  and  rent,  1 69  ; 
on  fuidhir  tenancy,  174:  on  descent 
of  lands,  1 90  ;  in  favour  of  individual 
descent  of  property,  193  ;  on  the  dis- 
tribution of  the  Irish  family,  208 
sej. ;  on  '  Geilfine,'  216:  expansive 
use  of  the  term  '  fine,'  231  ;  on  tribal 
relations  of  ecclesiastical  bodies,  236; 
on  fosterage,  241 ;  on  literary  foster- 
age, 242 ;  law  of  distress,  279 ;  re- 
semblance to  Teutonic  and  English 
law,  282,  seq. ;  modern  features  in,  290 
Irish  tribe,  agrarian  constitution  of,  92 


INDEX. 


407 


JOHN 


LEGAL 


JOHN,    King,    the   first  -who    called 

tl      himself  king  of  England,  73 

Joint  Undivided  Family  of  the  Hit  doos, 

7 ;    marked  by  the   common  hearth 

and  common  meal,  ib. ;  the  first  stage 

of  the  community,   78 ;  bound  by  a 

common  ancestor,  106,116;  resembles 

the    Irish     gavelkind,    187;     lands 

distributed  pir  capita,  195  ;  manager 

of  the  affairs  of,  variously  appointed, 

200 ;     dissolution     of,    by    English 

courts,  206  ;  their  lands  conferred  on 

a  single  family  or  person,  270 

Jurisprudence,  modern  theories  of,  87 ; 

the  science  of  positive  law,  362 
Justinian,    Novel    118   of,   on   consan- 
guinity, 213;  constitution  of,  240 


T7~ILKENNY,  statute  of,  18 

J\-  Kingly  grants  or  charters,  the 
great  cause  of  interruption  in  English 
history,  233 

Kinship,  or  consanguinity,  as  the  basis 
of  society,  6i ;  an  actual  bond  of 
union,  ib. ;  primitive  view  of,  65 ,  the 
only  brotherhood  recognised,  ib. ; 
Loud  of  Aryan,  Semitic,  and  Uralian 
tribes,  66 ;  abnormal  conceptions  of 
by  other  races.  67 ;  tends  to  recogni- 
tion of  common  authority  or  power, 
68  ;  artificial  or  adoption,  69 ;  founda- 
tion of  patriarchal  power,  70 ;  in 
settled  communities  gives  place  to  the 
bond  of  land,  72;  common  territory 
substituted  for  common  race,  75  ;  by 
sl<  w  process  at  Athens  and  Rome. 
76 ;  consequent  changes  from  tribal 
to  territorial  sovereignty,  ib. ;  sur- 
viv.-il  of  kinship  in  Ireland  and  Scot- 
land, 89;  clearly  stamped  on  the 
Brehon  law,  ib. ;  which  applies  the 
tf-rm  fine,  or  family,  to  all  the  sub- 
divisions of  Irish  society,  90,  105 ; 
the  chief;  the  common  ancestor,  94 ; 
kinship,  not  land,  the  bond  of  the 
Irish  tribes,  9G ,  Mr.  Morgan  on, 
'212;  descriptive  system  of,  213; 
classificatory  system  of,  214;  single 
idfH  of  relation  between  man  and 
m:;n  in  early  times,  228;  all  others 
slaves  or  en<  mies,  ib. ;  fictitious 
assumptions  of,  2?9  ;  adoption,  230 ; 
in  Irish  tribes,  231  ;  origin  of  guilds, 
232;  of  partnerships,  234;  of  agency, 


ib. ;  spiritual  kinship,  237  ;  spiritu* 
relationship,    239 ;    fosterage,    211 
literary  kinship,   246;  artificial  kin- 
ship of    Anglo-Norman    settlers    in 
Ireland,  24? 


LAND,  settlement  on,  a  bond  of  union, 
70 ;  manner  of,  described  by  Indian 
poetess,  71 ;  takes  the  place  of  kin- 
ship, 72 ;  indicated  by  the  term 
fatherland,  74 ;  slowly  supplanted 
the  bond  of  kinship  in  Hellenic  and 
Latin  communities,  75 ;  foundation 
of  village  communities,  76;  periodical 
redistribution  of,  81  ;  the  foundation 
of  the  feudal  system,  85  ;  liberated 
by  the  dissolution  of  that  system,  86 
in  Ireland,  private  property  in,  98 
cheapness  of  land  in  early  ages.  142 
not  so  important  as  capital,  168;  in 
very  ancient  times  a  drug,  ib. ;  de- 
scent by  gavelkind,  186;  natural 
communism  in,  188;  dissolved  by 
gavelkind,  189 ;  lands  surrendered 
by  Irish  chiefs,  and  regranted  on  new 
tenure,  207 ;  similar  practice  in  India, 
ib. ;  more  satisfactorily  in  late  en- 
franchisement of  the  Russian  serfs, 
208 

Landau,  on  noble  claps,  132 

Laveleye,  on  primitive  forms  of  pro- 
perty, 3 ;  on  village  communities  in 
Java,  77  ;  on  house  communities  in 
Dalmatia,  79  ;  on  Swiss  periodic 
allotments,  114 

Law  of  the  market,  178 

—  of  nature  and  law  of  the  letter,  25 

—  whether  force  or  order,  371  ;  figura- 
tive use    of  the   word,    372 ;    'the 
Eeign  of    Law,'    373 ;   in  juridical 
sense,    374 ;    early    conceptions    of, 
375 ;  in  ancient  state  of  the  world, 
383;   in  modern    states,   391,    392; 
force  and  order,  394 

—  English.     See  English  Law 

—  Hindoo.     See  Hindoo  Law 

—  Irish.     See  Irish  Law  Tracts 

—  Roman.     See  Roman  Law 

Lebor  na  Huidre,  an  Irish  MS.  on  co- 
tenancy, 114 

Legal  remedies,  primitive  forms  of,  250 
seq. ;  law  of  distress,  ib.  •  legis  ac- 
tiones  of  the  Roman  law,  251 ;  equi- 
valent to  procedure,  ib. ;  substantive 


408 


INDEX. 


LEGAL 

and  adjective  law,  ib. ;  legis  actio 
sacramenti,  252 ;  ancient  dramatisa- 
tions, 253  ;  the  praetor  as  arbiter,  ib. ; 
demand  before  action,  254 ;  the  wand 
an  ancient  spear,  ib. ;  art  of  pleading, 
255  ;  administration  of  justice,  ib. ; 
sacramentum  or  stake,  ib.  •  origin  of 
court  fees,  ib. ;  dangers  of  miscar- 
riage, ib. ;  origin  of  special  pleading, 
256 ;  judicis  postulatio,  ib. ;  the 
conditio,  or  notice,  ib. ;  sponsio  and 
restipufatio,  257  ;  manus  injtctio  and 
pignoris  capio,  ib. ;  laying  wager, 
25D ;  seizure  of  goods,  260  ;  distraint 
in  Teutonic  societies,  261 ;  distress  for 
rent,  262  ;  replevin,  ib.  •  course  of  a 
distress,  263 ;  the  village  pound,  ib.  ; 
antiquity  of  procedure  in  distress, 
265 ;  traces  of  a  foray,  ib. ;  inter- 
position of  state  authority,  266  :  re- 
plevin, 267 ;  weakness  of  ancient 
courts,  268 ;  leges  barbarnrum  on 
distress,  269;  the  Salic  law,  270; 
ancient  view  of  plaintiff  and  defend- 
ant, 272 ;  excessive  technicality  of 
accient  law,  273 ;  reasons  for  sur- 
vival of  distress,  274 ;  increase  of 
the  power  of  courts  of  law,  275 ; 
attachment,  276  ;  modern  theory  of 
distress,  277  ;  development  of  reme- 
dies, '278  ;  similar  legal  remedies  in 
the  Irish  ancient  law,  279 ;  the 
Senchus  Mor  on  the  law  of  distress, 
ib. ;  large  space  accorded  to  it,  280  ; 
epitome  of  its  provisions,  280,  281 ; 
strong  resemblance  to  English  com- 
mon law,  282  ;  to  ancient  Teutonic 
law,  283  ;  points  of  difference,  284  ; 
questions  respecting  powers  of  Irish 
courts,  286  ;  appear  to  have  had  only 
voluntary  jurisdiction,  ib. ;  assumed 
elaborate  organisation,  287  ;  apparent 
weakness  of  Irish  courts,  288;  similar 
instance  of  India,  289 ;  litigHtion 
substituted  for  violence,  ib. ;  modern 
features  in  Irish  law  of  distress,  290 ; 
equity  and  reasonableness  of,  291  ; 
wrongful  distress  made  felony,  294  ; 
distress  a  primitive  Aryan  custom, 
296 ;  Indian  form  of  distress,  '/97  ; 
improvement  on  older  custom,  301  ; 
Kafir  law  suit,  302;  feud  law  of 
Alfred,  303 ;  .Dharna  resorted  to  for 
arrears  of  pay,  304  ;  the  same  stated 
ox  'pignoris  capio'  by  Gain's,  306 


MORGAN 


'  Leges  Barbarorum,'  on  distress,  269 
Legislation  l:y  a  learned  class,  27 
Legislatures,  origin  of  Aryan,  in  village 

councils,  388 

Le  Play,   M.,  on  French   village  com- 
munities, 6 
'Liber  Hymnorum,'  on  Irish  cotenancy, 

113 

Literary  Fosterage.     See  Fosterage 
—  influence  anciently  very  great,  51 
Littleton,  on  borough  English,  222 
Locke,  on  the  origin  of  society,  357 
London  Companies,  the,  contain  traces 
of  ancient  brotherhood.  233 


MACAULAY,  Lord,  on  literary  in- 
fluence, 52 

Madras  High  Court  on  alienation  of 
tribal  lands,  110;  on  '  Stridhan,"  323 

Malberg  Gloss,  the,  256 

Manu,  Law  Tracts,  attributed  to,  243, 
298;  on  'Stridhan,'  322 

Marriage,  early  Roman,  312;  middle 
Roman,  315;  facility  of  divorce,  317; 
settlement  almost  universal,  320 ; 
Hindoo  law  of,  321  scg. ;  develop- 
ment of  law  checked  by  Brahminical 
influence,  325 

Maurer,  Gr.  L.  von,  on  Teutonic  com- 
munities, 3  ;  on  rules  of  tenure,  100 ; 
on  noble  class,  132 

McEgan,  Hugh,  his  copy  of  the  Sen- 
chus Mor,  17;  an  hereditary  Brehon, 
36 

McLennan,  Mr.,  on  primitive  marriage, 
215;  on  marriage  ceremonies,  253 

Measure  of  Damages,  sound  principles 
of,  in  the  Book  of  Aicill,  45 

Metayer  tenancy,  163 

Modern  States,  formation  of,  385 ; 
coalescence  of  original  groups.  386  ;  in 
Attica,  and  Rome,  ib.  •  the  effect  of 
Roman  legislation  upon,  390 ;  cus- 
tomary law  Iroken  up,  391  ;  legisla- 
tive character  of,  392  ;  force  of  law 
in,  393 ;  the  energy  of  legislatures 
the  distinguishing  characteristic  of, 
398 

Monogamy,  supplanted  polygamy 
through  divorce,  60 

Montesquieu,  on  political  power,  379 

Morgan*  Mr.  L.,  on  consanguinity,  68, 
212  ;  on  names  of  relationship,  70 


INDEX. 


409 


HAMS 

"VA'IS.  taking,  the  practice   of  dis- 

j.1  tress,  262 ;  origin  of  '  Withernam,' 
263  ;  before  the  Conquest.  270 

Nasse,  on  land  communities',  4 ;  on 
rules  of  tenure,  100 

Nationality,  a  modern  revival  of  kin- 
ship, 75 

Niebuhr,  on  Teutonic  aristocracies, 
230;  his  discovery  of  the  MS.  of 
Gaius,  250,  308 

Nobility,  origin  of,  132;  definition  of 
by  Paul  of  Russia,  137 ;  popular 
theory  of,  138;  by  royal  grant,  a 
modern  institution,  ib, 

Nomad  tribes,  72 


O'BRIEN,   Connor  More,  division  of 
an  estate  by,  194 
O'Brien,  Donogh,    division  of  an  estate 

by,  194 

O'Neill,  case  of,  53 
Ordeal,  an  ancient  test  of  truth,  48 
Ownership  and  occupation,  102 


T)ARAGE,  a  French  noble  tenure, 
L  205 

Partnership,  founded  on  brotherhoods, 
234 ;  Roman  unlimited  liability  in, 
ib. 

Patriarchal  power,  115;  its  gradual 
transmutation,  116  ;  passes  into  elec- 
tive headship,  117;  revives  when 
expansion  of  the  tribe  is  checked, 
118;  in  Aryan  races,  ib. ;  over  ani- 
mate and  inanimate  property,  310 ; 
several  powers  blended  in,  313  ;  their 
subsequent  separation,  314 ;  the 
germ  of  all  permanent  power,  379 
Patterson,  Mr.,  on  house  communities, 

79 

1  Per  capita,'  division  by,  188,  195,  328 
•Per  stirpes,'  division  by,  188, 195,  328 
'  Pignoris  Capiu,'  207  seq. ;  seizure  of 

goods,  260 
Pliny,  his  Natural  History  a  source  of 

errors,  29 

Poste,  Mr.,  on  Plato's  laws,  258 
Pound,  the  village,  antiquity  of,  263 
Primitive  ideas,  growth  and  diffusion 
of,  225  scq. ;  barrernecs  of  primitive 
iniHgination,  ib. ;  slowly  transformed, 
229;    consanguinity  the  only  bond, 
230 


EC  MAN 

Primogeniture,  the  result  of  the  status 
of  the  chief,  120;  limited  applica- 
tion of,  in  ancient  France,  1 22 ; 
general  i  n  England.  124;  different  from 
'  the  birthright,'  197 ;  one  of  the  most 
difficult  problems,  198  ;  unknown  to 
antiquity,  ib.  ;  must  be  connected 
with  the  irruption  of  the  barbarians, 
199  ;  ancient  forms  of,  ib. ;  a  product 
of  decaying  leadership,  202;  trans- 
formation of,  203  ;  affected  by  deci- 
sion of  the  controversy  between 
Bruce  and  Baliol,  204 

Progress,  slowness  of,  227 

Property  in  land,  beginnings  of,  1  ;  in 
Russia,  distributed  among  groups  of 
kinsmen,  2;  Sohm,  on  early  history 
of,  3 ;  Laveleye,  on  primitive  forms 
of,  ib.  ;  affected  by  the  dissolution  of 
the  feudal  system,  86  ;  persistency  of 
feudal  theories  respecting,  88  ;  private 
ownership  in  ancient  Ireland,  89  ; 
property  in  severalty,  95  ;  most  com- 
plete in  the  case  of  chiefs,  ib. ;  double 
origin  of,  115  ;  affected  by  increasing 
authority  of  the  chiefs,  ib. ;  two-fold 
origin  of,  120  ;  subdivision  of,  in 
France  before  the  Revolution,  121; 
English  conception  of  absolute  pro- 
perty in  land,  126 ;  rack  rent  in 
Ireland,  127  ;  by  gavelkind,  186  ;  pro- 
bably by  various  tenures,  192  ;  suc- 
cessive modes  of  division,  195;  dis- 
tribution of,  during  owner's  life,  196 

Punchayet,  native  Indian  jury,  221 


RACE,  theories  of,  97 
Races,  the  three,  with  which  alone 
jurisprudence  deals,  65 ;  other  abnor- 
mal races,  67 

Rack  rent,  175.     See  Rents 

Religious  houses  in  Ireland,  groups  or 
families  of,  237 

Renan,  M.,  on  Semitic  village  commu- 
nities in  Africa,  77 

Rents,  the  three,  of  the  Brehon  Tracts, 
175;  questions  of,  in  early  Irish 
history,  177 ;  commented  on  by 
Spenser  and  Sir  J.  Davis,  179 ;  their 
testimony  explained,  180 ;  due  to  the 
increase  of  fuidhir  tenants,  182  seq. 

Rogers,  Mr.,  T.,  on  cheapness  of  land, 
142 

Roman  Empire,  influence  of  the,  on  th« 


410 


TXDEX. 


ROMAN 

modern  -world,  20  ;  distinctively 
legislative,  330  ;  destructive  of  local 
customs,  ib. 

Roman  law,  Aryan  customs  of  the 
Twelve  Tables,  9  ;  enlarged  by  in- 
terpretations, 10  ;  compared  with 
Irish  law,  ib. ;  extended  by  '  responsa 
prndentu  n,'  42 ;  enforced  by  strong 
government,  ib. ;  affected  the  Brehon 
laws,  55;  agnatic  kindred  in,  106; 
importance  of  its  history,  308 ;  the 
chief  branch  of  Latin  literature,  ib. ; 
Niebuhr's  discovery  of  the  work  of 
Gains  on,  308,  309  ;  usucapion,  or 
prescription,  315  ;  progressive  steps 
of,  on  marriage,  320;  made  dotation 
compulsory,  336 

Roman  plebs,  its  final  victory,  76  ;  the 
foundation  of  the  Roman  Empire,  ib. 

Rome  formed  by  a  coalescence  of 
village  communities,  84 

Rundale  holdings  in  Ireland,  101 

Runjeet  Singh,  a  sovereign,  but  not  a 
legislator,  381,  382 

Russia,  village  communities  in,  2 

Russian  serfs,  enfranchisement  of,  208 


QUCRAMENTTJM,  money  staked  in 

kj     litigation,  255 

Saer  Stock  Tenure,  law  of,  152,  158; 

bound  the  receiver  to  pay  homage, 

159 

Sanctions  of  Brehon  law,  39 
Scotland,  peculiar  tenure  of  land   in, 

101 
Scott,  Sir  "Walter,  his  picture  of  Celtic 

society  in  'Waverley,'   141;    of  the 

primitive  chief,  144 
1  Scds,'  an   Irish   measure   of  value  of 

cattle,  149,  160 
Senchus  Mor,  age  of  the,  1 2 ;  origin  of 

the,  21 ;  on  the  three  rents,  175  ;  on 

fosterage,  241 
Sept,  the  Irish,  186 
Sexes,  relations  of  the,  in  Brehon  law, 

59  ;    greater  purity    of  the   modern 

Irish,  61 
Skene,  Mr.  W.  F.,  on  the  Highlanders 

of  Scotland,  6,  101,  187 
Slavery,  effects  of   Christianity  upon, 

62 ;  ancient  importance  of,  for  tillage, 

150 
Socage,  the  tenure  of  the  free  farmer, 

120 


TANAISTS 

Social  connexions,  Irish  L.wtrnct  on,  61 

Sohm,  on  early  history  of  property,  3 ; 
on  social  organisation,  202  ;  on  tha 
Salic  law,  271 ;  on  risks  of  distraint, 
273  ;  on  Prankish  popular  courts, 
288 

Sovereignty,  tribal  and  territorial,  76  ; 
doctrines  of  the  analytical  jurists  on, 
342  seq.  See  Austin 

Spenser,  Edmund,  on  Irish,  law,  18  ;  on 
Irish  land,  98  ;  on  Irish  oppression, 
127;  on  'right  of  refection,'  161; 
denounces  the  Eric-fines,  170  ;  on 
oppressive  rents,  179;  on  election  of 
chief,  201 ;  on  law  of  distress,  292 

Stephen,  Mr.  Fitzjames,  on  dormant 
anarchy,  377  ;  on  sovereignty,  383 

Stock,  Irish  system  of  giving,  151  ; 
principal  wealth  of  chiefs,  157  ; 
Saer  and  Daer  tenure  by,  158  ; 
effect  of  accepting,  163 

Ptokps,  Mr.  W.,  on  the  age  of  the 
'  Senchus  Mor,'  12  ;  on  Irish  co- 
tenancy, 113;  on  '  Geilfine,'  216;  on 
sitting  'Dharna,'  297 

Strabo,  on  the  Druids,  28 

Stridhan,  in  Hindoo  law,  321 ;  signifies 
'  woman's  property,'  ib. ;  limited  by 
the  Anglo-Indian  courts,  323 

Stubbs,  Mr.,  on  Church  lands,  104  ;  on 
the  '  companions '  of  English  kings, 
139;  on  feudalism,  154 

Succession,  law  of,  in  feudalised  Europe, 
205.  See  Institutions 

Sullivan,  Dr.,  on  Irish  law,  25 ;  on  the 
Irish  '  fine,'  90,  92 ;  on  Celtic  land 
systom,  96 ;  on  Irish  land,  99 ;  his 
translation  of  Brehon  tract,  140 ;  on 
fuidhir  tenants,  182;  on  gavelkind, 
191  ;  on  tribal  origin  of  guilds,  232; 
on  Irish  courts,  287  ;  on  '  dynamical 
influence,'  296 

Survivals,  in  theory  of  land,  88 ;  in 
names  of  places,  92  ;  in  cattle-steal- 
ing, 144 

Suttee,  found  to  be  a  modern  innovation, 
326 ;  due  to  the  dislike  of  the  Brah- 
mins to  the  holding  of  property  by 
women,  335 


rpACITUS.  on  German  nobility,  131; 
J-     on  the  king's  companions,  139 
Tanaists,  the,  acted  us  judges,  37  ;  mode 
of  appointment  of,  201 


IXDE\ 


411 


TAMSTRY 


WOMES 


Tanistry,  3S,  99,  185.  192.  202;  abo- 
lition of,  205 ;  its  connection  with 
primogeniture,  208 

Teignmouth,  Lord,  his  description  of 
4  Dharna,'  298 

Tenants  at  will,  178 

Testamentary  jurisdiction,  its  origin  in 
ecclesiastical  courts,  332 

Teutonic  forms,  ancient,  of  distraint, 
270 

Tocqueville,  on  signorial  monopolies, 
123 

Todd,  Dr.,  his  life  of  St.  Patrick,  236  ; 
on  families  of  religious  houses, 
237 

Tooting,  oripin  of  the  name,  83 

Tribe,  the,  98  ;  connected  with  the  land, 
ib.  ;  of  the  Brehon  Tracts,  107; 
limitation  of  alienation  of  land,  108  ; 
expansion  of  the  family  into,  116; 
transition  to  an  elective  headship, 
117;  a  source  of  institutions,  119  ; 
owners  of  the  land,  in  the  Brehon 
Tracts,  129;  importance  of  cattle  to, 
149  ;  power  to  regulate  stock  giving, 
163 

Troplong,  M.,  on  Christian  influence 
on  laws,  61 

Tylor,  Mr.,  on  survivals,  144 ;  on  finger- 
counting,  221 ;  on  primitive  imagina- 
tion, 225 


TTFFINGHAM,  origin  of  the  name, 

U      83 

Utilitarian  philosophy,  the,  founded  on 
personal  equality,  399  ;  contrary 
doctrine  of  the  Brahmins,  ib. 


T'ERSE,  necessity  of,  before  the  art 
V      of  writing,   14 ;  Indian  memorial 

verses,  71 

VMlnge  communities,  in  Russia,  2  ;  in- 
creased attention  given  to  them  in 
India,  4 ;  Celtic,  slight  information 
respecting,  ib. ;  described  by  Caesar, 
6  ;  in  France,  6 ;  in  Dalmatia  and 
Croatia,  7 ;  important  information 
furnished  by  the  Irish  Law  Tracts,  8  ; 
founded  upon  land  settlement,  76 ; 
the  origin  of  landed  property,  77 ; 
not  exclusively  Aryan,  io. ;  found  in 
Java  and  northern  Africa,  ib.  ;  in 
Russia  and  India,  78  ;  described,  81 ; 


Indian,  held  together  by  the  land, 
82 ;  rapidly  disappearing,  ib. ;  distinct 
from  '  natural  communism,'  83 ; 
coalescence  of,  the  origin  of  Athens 
and  Rome,  84  ;  course  of  their  trans- 
formation, ib. ;  due  to  feudnlisation, 
85 ;  adopted  by  first  English  emi- 
grants in  New  England,  94  ;  distri- 
buted lands  per  capita,  195  ;  various 
powers  blended  in  a  single  idea, 
314  ;  formed  the  Hellenic  world  and 
the  Roman  Empire,  ib. ;  in  India  and 
in  England  compared,  389 

Village  council,  the,  the  original  legis- 
lature of  the  Aryan  races,  388 ; 
source  of  all  the  most  famous  legisla- 
tures of  the  world,  ib. ;  its  powers 
judicial  rather  than  legislative,  389 

Village  pound,  the  oldest  institution  in 
the  country,  263 


WAGER,  common  way  of  postponing 
a  dispute,  259 

Wales,  custom  in,  similar  to  borough 
English,  223 

Welsh  laws,  published  by  the  Record 
Commission,  6 

Will,  conception  of,  in  Irish  Law  Tracts, 
due  to  the  Church,  56 

Women,  married,  settled  property  of, 
306  ;  a  very  old  discussion,  ib. ;  nearly 
as  old  as  the  '  family,'  307 ;  long 
recognised  by  Continental  States,  ib. ; 
ideas  of  Roman  and  Hindoo  societies 
concerning,  310 ;  in  the  patriarchal 
family,  311  ;  powers  of  guardians, 
312  ;  early  Roman  marriage,  ib ;  the 
wife's  property  absolutely  the  hus- 
band's, ib. ;  change  made  by  '  usur- 
pation,' 316  ;  provision  of  the 
'  Twelve  Tables,'  ib.  ;  marriage  a 
voluntary  society,  terminable  at 
pleasure  by  divorce,  317  ;  severer 
principles  of  Christianity,  ib ;  be- 
ginning of  settled  property  of  married 
women,  318;  French  regime  of  biens 
tiparis,  ib. ;  the  dotal  estate,  319; 
parapherna,  ib. ;  lately  arrived  at  in 
England,  320  ;  Roman  marriage  set- 
tlement almost  universal,  ib. ;  simple 
form  of,  321  :  followed  in  the  Code 
Napoleon,  ib. ;  Hindoo  law  of  '  Strid- 
han,'  ib. ;  Mmited  by  the  Anglo- 
Indian  courts,  323 ;  prehistoric  origin 


412 


INDEX. 


WOMEN 

of,  324 ;  Brahmins'  dislike  of  woman's 
property,  325  ;  gradual  enfranchise- 
ment of  women,  326 ;  Brahmin  view 
of  woman's  property,  333 ;  rights  of 
the  childless  widow,  334 ;  suttee  in 
Bengal  promoted  by  the  Brahmins, 
335;  Roman  compulsory  dotation, 
336 ;  law  of  Augustus,  ib. ;  law  of 
the  Christian  Church  337 ;  doarium, 


ZEMINDAR 

338 ;  enfranchisement  of  w.iman  a  test 
of  civilisation,  339,  340 


rOUNG,  Arthur,  on  France,  121 


or  landlord,  tenantc  de- 
LI    pendent  on,  184 


